2013 Felony Defender Training

2013NewFelonyDefenderTraining
February1315,2013/ChapelHill,NC
ELECTRONICPROGRAMMATERIALS*
*ThisPDFfilecontains"bookmarks,"whichserveasaclickabletableofcontentsthat
allowsyoutoeasilyskiparoundandlocatedocumentswithinthelargerfile.Abookmark
panelshouldautomaticallyappearonthelefthandsideofthisscreen.Ifitdoesnot,click
theiconlocatedonthelefthandsideoftheopenPDFdocumentthatlookslikea
dogearedpagewitharibbonhangingfromthetop.

*IDS employees may not claim reimbursement for lunch

2013NewFelonyDefenderTraining
February1315
UNCSchoolofGovernment,ChapelHill,NC
CosponsoredbytheUNCChapelHillSchoolofGovernment&
OfficeofIndigentDefenseServices
Wednesday,February13
12:15to1:00 Checkin
1:00to1:30 WelcomeandWhattheSchoolofGovernmentCanDoforYou
AlysonGrine,DefenderEducator
1:30to2:00 WhatsDifferentaboutPracticeinFelonyCases?(shortfilm)(30min.)
AlysonGrine
2:00to2:45 WhatsintheFelonyFile;OrganizingaTrialNotebookandExhibits
(45min.)
ManiDexter,Attorney
AmosGrangerTyndall,P.A.,ChapelHill,NC

2:45to3:00 Break(snackprovided)

3:00to4:00 TheCriminalIndictment:WhatFelonyDefendersNeedtoKnow(60min.)
JessicaSmith,ProfessorofPublicLawandGovernment
4:00to5:00 LabReportsandtheLegalIssuesSurroundingThem(60min.)
SarahRackley,ForensicResourceCounsel
OfficeofIndigentDefenseServices,Durham,NC;
AlysonGrine

5:00 Adjourn


Thursday,February14
9:00to10:15 DevelopinganInvestigationandDiscoveryPlan(75min.)
MikeKlinkosum,Attorney
Cheshire,Parker,Schneider,&Bryan,Raleigh,NC
10:15to10:30 Break
10:30to12:00 WORKSHOP:DevelopinganInvestigationandDiscoveryPlan(90min.)
12:00to1:00 Lunch(providedinbuilding)*
1:00to2:30 SentencinginSuperiorCourt(90min.)
JamieMarkham,AssistantProfessorofPublicLawandGovernment
2:45to3:45 VoirDireandDemonstration(60min.)
RebeccaWiggins,AssistantPublicDefender
OfficeofthePublicDefender,Durham,NC
3:45to4:00 Break
4:00to5:00 PreservingtheRecord(60min.)
StaplesHughes,NCAppellateDefender
OfficeoftheAppellateDefender,Durham,NC
5:00 Adjourn
6:00 OptionaldinneratCarolinaBrewery


Friday,February15
9:00to9:45 EvidenceBlocking(45min.)
JohnRubin,ProfessorofPublicLawandGovernment
9:45to10:45 MotionstoSuppress:Statements,Property,andIdentification(60min.)
SusanSeahorn,AssistantPublicDefender
OfficeofthePublicDefender,OrangeCounty,NC

10:45to11:00 Break
11:00to12:30 WORKSHOP:MotionstoSuppressandEvidenceBlocking(90min.)

12:30to1:30 Lunch(providedinbuilding)*
1:30to2:15 JuryInstructions(45min.)
PhoebeDee,AssistantCapitalDefender
OfficeoftheCapitalDefender,Durham,NC
2:30to3:30 RecordsGatheringandSentencingAdvocacy(60min.)
BertKemp,ChiefPublicDefender
OfficeofthePublicDefender,Greenville,NC;
BethWinston,Investigator
OfficeoftheCapitalDefender,Durham,NC

3:30to4:30 EthicsforFelonyDefenders(60min.)
TomMaher,ExecutiveDirector
OfficeofIndigentDefenseServices,Durham,NC
4:30to4:35 ClosingRemarks

4:35 Adjourn
CLEHOURS:15.5*
*Includes1hourofethics/professionalresponsibility
INDICTMENTS
Te author is a School of Government faculty member who specializes in criminal law and procedure.
ADMI NI STRATI ON OF JUSTI CE BULLETI N NUMBER 2008/ 03 | JULY 08
The Criminal Indictment: Fatal Defect,
Fatal Variance, and Amendment
Jessica Smith
Contents
I. Introduction 3
II. General Matters 4
A. Date or Time of Offense 4
1. Homicide 4
2. Burglary 5
3. Sexual Assault 5
4. Failure to Register as a Sex Oender 7
5. Larceny 7
6. False Pretenses 8
7. Possession of a Firearm by a Felon 8
8. Impaired Driving 8
9. Conspiracy 8
10. Habitual and Violent Habitual Felon 8
11. Sexual Exploitation of a Minor 9
B. Victims Name 9
C. Defendants Name 11
D. Address or County 12
E. Use of the Word Feloniously 13
F. Statutory Citation 14
G. Case Number 15
H. Completion By Grand Jury Foreperson 15
I. Prior Convictions 15
J. Sentencing Factors 16
III. Offense Specic Issues 16
A. Homicide 16
B. Arson 18
C. Kidnapping and Related Offenses 18
D. Burglary, Breaking or Entering, and Related Crimes 20
1. Burglary and Breaking or Entering 20
2. Breaking into Coin- or Currency-Operated Machine 23
E. Robbery 23
F. Assaults 25
1. Generally 25
2. Injury Assaults 26
3. Deadly Weapon Assaults 26
4. Assault on a Government Ocial 28
5. Habitual Misdemeanor Assault 28
6. Malicious Conduct by Prisoner 28
G. Stalking 28
H. Resist, Delay, and Obstruct Ofcer 29
I. Disorderly Conduct 29
J. Child Abuse 29
K. Sexual Assault 29
L. Indecent Liberties 32
M. Larceny, Embezzlement, and Related Crimes Interfering with Property Rights 32
N. Receiving or Possession of Stolen Property 38
O. Injury to Personal Property 38
P. False Pretenses and Forgery 38
1. False Pretenses 38
2. Identity Teft 39
3. Forgery 40
Q. Perjury and Related Offenses 40
R. Habitual and Violent Habitual Felon 40
S. Drug Offenses 43
1. Sale or Delivery 43
2. Possession and Possession With Intent to Manufacture, Sell, or Deliver 44
3. Tracking 45
4. Maintaining a Dwelling 45
5. Drug Paraphernalia 45
6. Obtaining Controlled Substance by Fraud or Forgery 46
7. Amount of Controlled Substance 46
8. Drug Name 47
T. Weapons Offenses and Firearm Enhancement 48
1. Shooting into Occupied Property 48
2. Possession of Firearm by Felon 48
3. Possession of Weapon of Mass Destruction 50
4. Firearm Enhancement 50
U. Motor Vehicle Offenses 50
1. Impaired Driving 50
2. Habitual Impaired Driving 50
3. Speeding to Elude Arrest 51
4. Driving While License Revoked 51
V. General Crimes 52
1. Attempt 52
2. Solicitation 52
3. Conspiracy 52
4. Accessory After the Fact to Felony 52
W. Participants in Crime 53
2 UNC School of Government Administration of Justice Bulletin
Tis bulletin replaces Administration of Justice Bulletin No. 2004/03.
I. Introduction
To pass constitutional muster, an indictment must allege lucidly and accurately all the essen-
tial elements of the [crime] . . . charged.
1
Tis requirement ensures that the indictment will
(1) identify the oense charged; (2) protect the accused from being twice put in jeopardy for the
same oense; (3) enable the accused to prepare for trial; and (4) enable the court, on conviction
or plea of nolo contendere or guilty, to pronounce sentence according to the rights of the case.
2
If
the indictment satises this requirement, it will not be quashed for informality or renement.
3

However, if it fails to meet this requirement, it suers from a fatal defect and cannot support a
conviction.
As a general rule, an indictment for a statutory oense is sucient if it charges the oense in
the words of the statute.
4
However, an indictment charging a statutory oense need not exactly
track the statutory language, provided that it alleges the essential elements of the crime charged.
5
If the words of the statute do not unambiguously set out all of the elements of the oense, the
indictment must supplement the statutory language.
6
Statutory short form indictments, such as
for murder, rape, and sex oense, are excepted from the general rule that an indictment must state
each element of the oense charged.
7
Although G.S. 15A-923(e) states that a bill of indictment may not be amended, the term
amendment has been construed to mean any change in the indictment that substantially alter[s]
the charge set forth in the indictment.
8
Tus, amendments that do not substantially alter the
charge are permissible.
Even an indictment that is sucient on its face may be challenged. Specically, an indictment
may fail when there is a fatal variance between its allegation and the evidence introduced at trial.
In order for a variance to be fatal, it must pertain to an essential element of the crime charged.
9
If
the variance pertains to an allegation that is merely surplusage, it is not fatal.
10
Fatal defects in indictments are jurisdictional, and may be raised at any time.
11
However, a dis-
missal based on a fatal variance between the indictment and the proof at trial or based on a fatal
defect does not create a double jeopardy bar to a subsequent prosecution.
12
1. State v. Hunt, 357 N.C. 257, 267 (2003) (quotation omitted). See generally G.S. 15A-924 (contents of
pleadings).
2. See Hunt, 357 N.C. at 267; State v. Hines, 166 N.C. App. 202, 206-07 (2004).
3. G.S. 15-153.
4. See, e.g., State v. Wade, 161 N.C. App. 686, 692 (2003).
5. See, e.g., State v. Hunter, 299 N.C. 29, 40-42 (1980) (although kidnapping indictment did not track the
language of the statute completely, it did charge every necessary element).
6. See State v. Greer, 238 N.C. 325, 328-31 (1953); State v. Partlow, 272 N.C. 60, 65-66 (1967).
7. See Hunt, 357 N.C. at 272-73; see also infra pp. 16-17 (discussing short form for murder in more
detail) and pp. 29-32 (discussing short forms for rape and sex oense in more detail).
Also, G.S. 20-138.1(c) allows a short form pleading for impaired driving. G.S. 20-138.2(c) does the same
for impaired driving in a commercial vehicle.
8. See State v. Price, 310 N.C. 596, 598 (1984) (quotation omitted).
9. See, e.g., State v. Langley, 173 N.C. App. 194, 197 (2005).
10. See infra pp. 4-53 (citing many cases distinguishing between fatal and non-fatal defects).
11. See, e.g., State v. Snyder, 343 N.C. 61, 65 (1996); State v. Sturdivant, 304 N.C. 293, 308 (1981).
12. See State v. Stinson, 263 N.C. 283, 286-92 (1965) (prior indictment suered from fatal variance); State
v. Whitley, 264 N.C. 742, 745 (1965) (prior indictment was fatally defective); see also State v. Abraham, 338
N.C. 315, 339-41 (1994) (noting that proper procedure when faced with a fatal variance is to dismiss the
The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment 3
Te sections below explore these rules. For a discussion of the use of the conjunctive term and
and the disjunctive term or in criminal pleadings, see Robert Farb, Te Or Issue in Criminal
Pleadings, Jury Instructions, and Verdicts; Unanimity of Jury Verdict (Faculty Paper, July 1, 2008)
(available on-line at www.iogcriminal.unc.edu/verdict.pdf).
II. General Matters
A. Date or Time of Offense
G.S. 15A-924(a)(4) provides that a criminal pleading must contain [a] statement or cross reference
in each count indicating that the oense charged was committed on, or on or about, a designated
date, or during a designated period of time. Also, G.S. 15-144 (essentials of bill for homicide),
G.S. 15-144.1 (essentials of bill for rape), and G.S. 15-144.2 (essentials of bill for sex oense)
require that the date of the oense be alleged.
13
However, a judgment will not be reversed when
the indictment fails to allege or incorrectly alleges a date or time, if time is not of the essence of
the oense and the error or omission did not mislead the defendant.
14
Likewise, when time is not
of the essence of the oense charged, an amendment as to date does not substantially alter the
charge. Time becomes of the essence when an omission or error regarding the date deprives a
defendant of an opportunity to adequately present his or her defense,
15
such as when the defendant
relies on an alibi defense
16
or when a statute of limitations is involved.
17
Te cases summarized
below apply these rules.
1. Homicide
State v. Price, 310 N.C. 596, 598-600 (1984) (no error to allow the State to amend date of
murder from February 5, 1983the date the victim diedto December 17, 1982the
date the victim was shot).
State v. Wissink, 172 N.C. App. 829, 835-36 (2005) (trial court did not err by allowing
the State to amend a murder indictment on the morning of trial; the original indict-
ment alleged that the murder occurred on or about June 26, 2000, and the evidence
showed that the murder actually occurred on June 27, 2000), revd in part on other
grounds, 361 N.C. 418 (2007).
charge and grant the State leave to secure a proper bill of indictment); State v. Blakney, 156 N.C. App. 671
(2003) (noting that although the indictment was fatally defective, the State could re-indict).
13. Te short forms for impaired driving also require an allegation regarding the time of the oense. See
G.S. 20-138.1(c) (impaired driving); G.S. 20-138.2(c) (impaired driving in a commercial vehicle).
14. See G.S. 15-155; G.S. 15A-924(a)(4); Price, 310 N.C. at 599.
15. Price, 310 N.C. at 599.
16. See State v. Stewart, 353 N.C. 516, 518 (2001). But see State v. Custis, 162 N.C. App. 715 (2004)
(explaining that time variances do not always prejudice a defendant, even when an alibi is involved; such is
the case when the allegations and proof substantially correspond, the alibi evidence does not relate to either
the date charged or that shown by the evidence, or when the defendant presents an alibi defense for both
dates).
17. See State v. Davis, 282 N.C. 107, 114 (1972) (variance of one day is not material where no statute of
limitations is involved).
2. Burglary
State v. Davis, 282 N.C. 107, 114 (1972) (no fatal variance when indictment alleged that
oense occurred on November 13 but evidence showed it took place on November 14 of
the same year; variance between allegation and proof as to time is not material where
no statute of limitations is involved) (quotation omitted).
State v. Mandina, 91 N.C. App. 686, 690 (1988) ([a]lthough nighttime is clearly of the
essence of the crime of burglary, an indictment for burglary is sucient if it avers that
the crime was committed in the nighttime; failure to allege the hour the crime was
committed or the specic year does not render the indictment defective).
State v. Campbell, 133 N.C. App. 531, 535-36 (1999) (no error to allow the State to
amend burglary indictment to change date of oense from June 2, 1997 to May 27,
1997; time is not an essential element of the crime; defendant was neither misled nor
surprised by the changein fact, defendant was aware that the date on the indictment
was incorrect).
3. Sexual Assault
In a sexual assault case involving a child, leniency is allowed regarding the childs memory of spe-
cic dates of the oense.
18
Te rule of leniency is not limited to very young children, and has been
applied to older children as well.
19
Unless the defendant demonstrates that he or she was deprived
of his or her defense because of the lack of specicity, this policy of leniency governs.
20
Te follow-
ing cases illustrate these rules.
Cases Finding a Fatal Defect or Variance/Error With Respect to an Amendment
State v. Stewart, 353 N.C. 516, 517-19 (2001) (indictment alleged that statutory sex
oense occurred between July 1, 1991 and July 31, 1991; the States evidence encom-
passed a 2 1/2 year period but did not include an act within the time period alleged
in the indictment; defendant relied on the dates in the indictment to prepare an alibi
defense and presented evidence of his whereabouts for each of those days; noting that a
rule of leniency generally applies in child sexual abuse cases but holding that the dra-
matic variance between the dates resulted in a fatal variance).
State v. Whittemore, 255 N.C. 583, 592 (1961) (time was of the essence in statutory rape
case in which indictment alleged that oenses occurred on a specic date and in its
case in chief, the States witnesses conrmed that date; after defendant presented an
alibi defense, the State oered rebuttal evidence showing that the crime occurred on
a dierent date; the rule that time is generally not an essential ingredient of the crime
charged cannot be used to ensnare a defendant).
State v. Custis, 162 N.C. App 715 (2004) (fatal variance existed between dates alleged
in sex oense and indecent liberties indictment and evidence introduced at trial; the
indictment alleged that the defendant committed the oenses on or about June 15,
2001; at trial there was no evidence of sexual acts or indecent liberties occurring on
or about that date; evidence at trial suggested sexual encounters over a period of years
18. See, e.g., State v. Stewart, 353 N.C. 516, 518 (2001).
19. See, e.g., State v. Ware, __ N.C. App. __, 656 S.E.2d 662 (2008) (applying the rule to a case involving a
15-year-old victim).
20. See Stewart, 353 N.C. at 518.
some time prior to the date listed in the indictment; defendant relied on the date
alleged in the indictment to build an alibi defense for the weekend of June 15).
Cases Finding No Fatal Defect or Variance/No Error With Respect to an Amendment
State v. Sills, 311 N.C. 370, 375-77 (1984) (variance between actual date of rape, March
14, 1983, and the date alleged in the indictment as on or about March 15, 1983 was
not fatal; defendant was not deprived of his ability to present his alibi defense; defen-
dant had notice that the oense date could not be pinpointed due to the victims youth).
State v. Baxley, 223 N.C. 210, 211-12 (1943) (although indictment charged that oense
was committed in April, 1942, victim testied at trial that the acts took place about
September, 1942, in December, 1941, and in April, 1942; time is not of the essence of
the oense of rape of a female under the age of sixteen).
State v. Ware, __ N.C. App. __, 656 S.E.2d 662 (2008) (in a case involving statutory rape
and incest, the court applied the rule of leniency with respect to a 15-year-old victim;
the court noted that on all of the dates alleged, the victim would have been 15 years
old).
State v. Wallace, 179 N.C. App. 710, 716-18 (2006) (trial judge did not err by allowing
a mid-trial amendment of an indictment alleging sex oenses against a victim who
was 13, 14, or 15 years old; original dates alleged were June through August 2000, June
through August 2002, and November 2001; amendment, which replaced the date of
November 2001 with June through August 2001, did not substantially alter the charges
against defendant when all of the alleged acts occurred while the victim was under the
age of fteen; although the defendant presented evidence that the victim was in another
state during November 2001, no other alibi or reverse alibi evidence was presented).
State v. Whitman, 179 N.C. App. 657, 665 (2006) (trial court did not err by allowing, on
the rst day of trial, the State to amend the dates specied in the indictment for statu-
tory rape and statutory sexual oense of a 13, 14, or 15-year-old from January 1998
through June 1998 to July 1998 through December 1998; because the victim would
have been fteen under the original dates and under the amended dates, time was not
of the essence to the States case; the amendment did not impair the defendants abil-
ity to present an alibi defense because the incest indictment, which was not amended,
alleged dates from January 1998 through June 1999, a time span including the entire
1998 calendar year, and thus the defendant was on notice that if he wished to present an
alibi defense, he was going to have to address all of 1998).
State v. Locklear, 172 N.C. App. 249, 255 (2005) (no fatal variance in incest case when
the defendant did not assert a defense of alibi).
State v. Poston, 162 N.C. App. 642 (2004) (no fatal variance between rst-degree sexual
oense indictment alleging that acts took place between June 1, 1994, and July 31, 1994
and evidence at trial suggesting that the incident occurred when the victim was seven
or [a]round seven and that victims seventh birthday was on October 8, 1994; no fatal
variance between rst-degree sexual oense indictment alleging that acts took place
between October 8, 1997 and October 16, 1997, and evidence at trial suggesting that it
occurred when victim was [a]round 10 and maybe age eleven, while she was living at
a specied location and that victim turned ten on October 8, 1997 and lived at the loca-
tion from 1997 until August 1999).
State v. McGri, 151 N.C. App. 631, 634-38 (2002) (no error to allow amendment of the
dates of oense in statutory rape and indecent liberties indictment; indictment alleged
that the oenses occurred on or between January 1, 1999 though January 27, 1999;
when the evidence introduced at trial showed that at least one of the oenses occurred
between December 1, 1998 and December 25, 1998, the trial court allowed the State to
amend the indictment to conform to the evidence; rejecting the defendants argument
that the change in dates prejudiced his ability to present an alibi defense).
State v. Crockett, 138 N.C. App. 109, 112-13 (2000) (indictments charging statutory rape
during the period from November 22, 1995 to February 19, 1996, were not impermis-
sibly vague; evidence showed that the act occurred in January 1996 when the victim
was fourteen years old; the exact date that defendant had sex with [the victim] is
immaterial).
State v. Campbell, 133 N.C. App. 531, 535-36 (1999) (no error to allow the State to
amend a statutory rape indictment to change date of oense from June 2, 1997 to May
27, 1997; time is not an essential element of the crime; the defendant was neither misled
nor surprised by the change).
State v. Hateld, 128 N.C. App. 294, 299 (1998) (rst degree sexual oense and indecent
liberties indictments were not impermissibly vague, although they alleged that the acts
occurred on or about dates in August 1992 and required defendant to explain where
he was during the entire summer in order to present an alibi defense).
State v. McKinney, 110 N.C. App. 365, 370-71 (1993) (rst-degree rape indictments alleg-
ing the date of the oenses against child victims as July, 1985 thru July, 1987 were
not fatally defective; time is not an element of the crime and is not of the essence of the
crime).
State v. Norris, 101 N.C. App. 144, 150-51 (1990) (no fatal variance between indictment
alleging that rape of child occurred in June 1986 or July 1986 and childs testimony
that rape occurred in 1984 or 1985; childs mother xed the date as June or July, 1986,
and the date is not an essential element of the crime).
State v. Cameron, 83 N.C. App. 69, 71-74 (1986) (no error in allowing the State to amend
date of oense in an incest indictment involving a child victim from on or about 25
May 1985, to on or about or between May 18th, 1985, through May 26th, 1985;
change did not substantially alter the charge; no unfair surprise because defendant
knew that the conduct at issue allegedly occurred during a weekend when an identied
family friend was visiting).
4. Failure to Register as a Sex Oender
State v. Harrison
,
165 N.C. App. 332 (2004) (an indictment charging failure to register as
a sex oender is not defective for failing to allege the specic dates that the defendant
changed residences).
5. Larceny
State v. Osborne, 149 N.C. App. 235, 245-46 (no fatal variance between the date of the
oense alleged in the larceny indictment and the evidence oered at trial; indictment
alleged date of oense as on or about May 3, 1999, the date the item was found in the
defendants possession; defendant argued that the evidence did not establish that the
item was stolen on this date; variance did not deprive the defendant of an opportunity
to present a defense when defendant did not rely on an alibi), ad 356 N.C. 424 (2002).
6. False Pretenses
State v. May, 159 N.C. App. 159, 163 (2003) (no error by permitting amendment of the
date in a false pretenses indictment to accurately reect the date of the oense rather
than the date of arrest; time is not an essential element of the crime).
State v. Simpson, 159 N.C. App. 435, 438 (2003) (trial court did not err in granting
the States motion to amend the false pretenses indictment to change the date of the
oense), ad, 357 N.C. 652 (2003).
State v. Tesenair, 35 N.C. App. 531, 533-34 (1978) (no error in granting the States
motion to amend date of oense in a false pretenses indictment from November 18,
1977, a date subsequent to the trial, to November 18, 1976; time was not of the essence
of the oense charged and defendant was completely aware of the nature of the charge
and the dates on which the transactions giving rise to the charge occurred).
7. Possession of a Firearm by a Felon
State v. Coltrane, __ N.C. App. __, 656 S.E.2d 322 (2008) (trial court did not err in
allowing the State to amend an indictment that alleged the oense date as on or about
the 9th day of December, 2004 and change it to April 25, 2005; the date of the oense
is not an essential element of this crime).
8. Impaired Driving
For cases pertaining to date issues with respect to prior oenses alleged for habitual impaired
driving, see infra p. 50.
State v. Watson, 122 N.C. App. 596, 602 (1996) (no fatal variance caused by Troopers
mistaken statement at trial that events occurred on June 25 when they actually
occurred on June 5; defendant himself testied that the events occurred on June 5; this
mistake on the part of the ocer was just that and not a fatal variance).
9. Conspiracy
State v. Christopher, 307 N.C. 645, 648-50 (1983) (fatal variance existed and resulted
in trial by ambush; conspiring to commit larceny indictment alleged that the oense
occurred on or about December 12, 1980; defendant prepared an alibi defense; the
States trial evidence indicated the crime might have occurred over a three month
period from October, 1980 to January, 1981).
State v. Kamtsiklis, 94 N.C. App. 250, 254-55 (1989) (no error in allowing amendment
of conspiracy indictments to change dates of oense from on or about May 6, 1987
through May 12, 1987 to April 19, 1987 until May 12, 1987; [o]rdinarily, the precise
dates of a conspiracy are not essential to the indictment because the crime is complete
upon the meeting of the minds of the confederates).
10. Habitual and Violent Habitual Felon
In habitual felon and violent habitual felon cases, date issues arise with respect to the felony sup-
porting the habitual felon indictment (substantive felony) as well as the prior convictions. Te
court of appeals has allowed the State to amend allegations pertaining to the date of the substantive
felony, reasoning that the essential issue is whether the substantive felony was committed, not its
specic date.
21

G.S. 14-7.3 provides, in part, that an indictment charging habitual felon must, as to the prior
felonies, set forth the date that the prior felonies were committed and the dates that pleas of guilty
were entered or convictions returned. Similarly, G.S. 14-7.9 provides, in part, that an indictment
charging violent habitual felon must set forth that prior violent felonies were committed and the
conviction dates for those priors. Notwithstanding these provisions, the court of appeals has
allowed amendment of indictment allegations as to the prior conviction dates and has held that
errors with regard to the alleged dates of the prior felonies do not create a fatal defect or fatal
variance.
22
11. Sexual Exploitation of a Minor
In State v. Rie,
23
indictments charging the defendant with third-degree sexual exploitation of a
minor in violation of G.S. 14-190.17A alleged the date of the oense as August 30, 2004. At trial,
the defense established that on that date, the computer in question was in the possession of law
enforcement, and not the defendant. Nevertheless, the trial court allowed a mid-trial amendment
to the allegation regarding the oense date. On appeal, the court held that this was not error, not-
ing that no alibi defense had been presented and thus that time was not of the essence.
B. Victims Name
Several general rules can be stated regarding errors in indictments with respect to the victims
name: (1) a charging document must name the victim;
24
(2) a fatal variance results when an
21. State v. May, 159 N.C. App. 159, 163 (2003) (no error in allowing amendment of the date of the felony
oense accompanying the habitual felon indictment; the date of that oense is not an essential element of
establishing habitual felon status); State v. Locklear, 117 N.C. App. 255, 260 (1994) (no error by allowing the
State to amend a habitual felon indictment to change the date of the commission of the felony supporting
the habitual felon indictment from December 19, 1992 to December 2, 1992; the fact that another felony
was committed, not its specic date, was the essential question).
22. State v. Lewis, 162 N.C. App. 277 (2004) (no error in allowing the State to amend habitual felon
indictment which mistakenly noted the date and county of defendants probation revocation instead of the
date and county of defendants conviction for the prior felony; because the indictment correctly stated the
type of oense and the date of its commission, it suciently notied defendant of the particular prior being
alleged; also, defendant stipulated to the conviction); State v. Gant, 153 N.C. App. 136, 142 (2002) (error
in indictment that listed prior conviction date as April 16, 2000 instead of April 16, 1990 was technical
in nature); State v. Hargett, 148 N.C. App. 688, 693 (2002) (trial court did not err in allowing the State
to amend conviction dates); State v. Smith, 112 N.C. App. 512, 516 (1993) (habitual felon indictment that
failed to allege the date of defendants guilty plea to a prior conviction was not fatally defective; indictment
alleged that defendant pled guilty to the oense in 1981 and was sentenced on December 7, 1981); State v.
Spruill, 89 N.C. App. 580, 582 (1988) (no fatal variance when indictment alleged that one of the three prior
felonies occurred on October 28, 1977, and defendant stipulated prior to trial that it actually occurred on
October 7, 1977; time was not of the essence and the stipulation established that defendant was not sur-
prised by the variance).
23. ___ N.C. App. ___, ___ S.E.2d ___ (June 17, 2008).
24. State v. Powell, 10 N.C. App. 443, 448 (1971) (in order to charge an assault, there must be a victim
named; by failing to name the person assaulted, the defendant would not be protected from subsequent
prosecution); see also State v. Scott, 237 N.C. 432, 434 (1953) (indictment that named the assault victim in
one place as George Rogers and in another as George Sanders was void on its face).
indictment incorrectly states the name of the victim;
25
and (3) it is error to allow the State to
amend an indictment to change the name of the victim.
26

Te appellate courts nd no fatal defect or variance or bar to amendment when a name error
falls within the doctrine of idem sonans. Under this doctrine, a variance in a name is not mate-
rial if the names sound the same.
27
Other cases hold that the error in name is immaterial if it can
be characterized as a typographical error or if it did not mislead the defendant. Te cases sum-
marized below illustrate these exceptions to the general rules stated above. Note that when these
cases are compared to those cited in support of the general rules, some inconsistency appears.
State v. Williams, 269 N.C. 376, 384 (1967) (indictment alleged victims rst name as
Mateleane; evidence at trial indicated it was Madeleine; there was no uncertainty
as to victims identity, the variance came within the rule of idem sonans, and was not
material).
State v. Gibson, 221 N.C. 252, 254 (1942) (variance between victims name as alleged in
indictmentRobinsonand victims real nameRolisoncame within the rule of
idem sonans).
State v. Hewson, 182 N.C. App. 196, 211 (2007) (no error in allowing the State to amend
rst-degree murder and shooting into an occupied dwelling indictment to change vic-
tims name from Gail Hewson Tice to Gail Tice Hewson).
State v. Holliman, 155 N.C. App. 120, 125-27 (2002) (no error to allow the State to
change name of murder victim from Tamika to Tanika).
State v. McNair, 146 N.C. App. 674, 677-78 (2001) (no error by allowing the State to
amend two of seven indictments to correct typographical error and change victims
name from Donald Dale Cook to Ronald Dale Cook; victims correct name appeared
twice in one of the two challenged indictments and the defendant could not have been
misled or surprised as to the nature of the charges).
State v. Wilson, 135 N.C. App. 504, 508 (1999) (no fatal variance between indictment
that alleged assault victims name as Peter M. Tompson and the evidence at trial
indicating that the victims name was Peter Tomas; arrest warrant correctly named
victim, defendants testimony revealed that he was aware that he was charged with
assaulting Peter Tomas, and the names are suciently similar to fall within the doc-
trine of idem sonans).
25. State v. Call, 349 N.C. 382, 424 (1998) (fatal variance between indictment charging defendant with
assault with a deadly weapon with intent to kill inicting serious injury upon Gabriel Hernandez Gervacio
and evidence at trial revealing that the victims correct name was Gabriel Gonzalez); State v. Bell, 270 N.C.
25, 29 (1967) (fatal variance existed between the robbery indictment and the evidence at trial; indictment
alleged that the name of the robbery victim was Jean Rogers but the evidence showed that the victim was
Susan Rogers); State v. Overman, 257 N.C. 464, 468 (1962) (fatal variance between the hit-and-run indict-
ment and the proof; indictment alleged that Frank E. Nutley was the victim but the evidence showed the
victim was Frank E. Hatley).
26. State v. Abraham, 338 N.C. 315, 339-41 (1994) (error to allow the State to amend an assault with a
deadly weapon with intent to kill indictment to change name of victim from Carlose Antoine Lattter to
Joice Hardin; [w]here an indictment charges the defendant with a crime against someone other than the
actual victim, such a variance is fatal; court notes that proper procedure is to dismiss the charge and grant
the state leave to secure a proper bill of indictment).
27. See Blacks Law Dictionary p. 670 (5th ed. 1979).
State v. Bailey, 97 N.C. App 472, 475-76 (1990) (no error in allowing the State to amend
the victims name in three indictments from Pettress Cebron to Cebron Pettress; the
errors in the indictments were inadvertent and defendant could not have been misled or
surprised as to the nature of the charges against him).
State v. Marshall, 92 N.C. App. 398, 401-02 (1988) (no error to allow amendment of
rape indictment to change victims name from Regina Lapish to Regina Lapish Foster;
defendant was indicted for four criminal violations, three indictments correctly alleged
the victims name, and only one inadvertently omitted her last name).
State v. Isom, 65 N.C. App. 223, 226 (1983) (no fatal variance between indictments nam-
ing the victim as Eldred Allison and proof at trial; although victim testied at trial that
his name was Elton Allison, his wallet identication indicated his name was Eldred
and the defendant referred to the victim as Elred Allison; the names Eldred, Elred, and
Elton are suciently similar to fall within the doctrine of indem sonans and the vari-
ance is immaterial).
Te courts have recognized other exceptions to the general rules that an indictment must cor-
rectly allege the victims name and that an amendment as to the victims name substantially alters
the charge. For example, State v. Sisk,
28
held that the State properly could amend an indictment
charging uttering a forged instrument, changing the name of the party defrauded or intended to
be defrauded from First Union National Bank to Wachovia Bank. Sisk reasoned that the banks
name did not speak to the essential elements of the oense charged and that the defendant did not
rely on the identity of the bank in framing her defense. Also, State v. Bowen
29
held that the trial
court did not err in allowing the state to change the victims last name in a sex crimes indictment
to properly reect a name change that occurred because of an adoption subsequent to when the
indictment was issued. And nally, State v. Ingram
30
held that it was not error to allow the State to
amend a robbery indictment by deleting the name of one of two victims alleged.
For a discussion of defects regarding the victims name for larceny, embezzlement, and other
oenses that interfere with property rights, see infra pp. 3236.
C. Defendants Name
G.S. 15A-924(a)(1) provides that a criminal pleading must contain a name or other identica-
tion of the defendant. Consistent with this provision, State v. Simpson
31
held that an indictment
that fails to name or otherwise identify the defendant, if his or her name is unknown, is fatally
defective. Distinguishing Simpson, the court of appeals has found no error when the defendants
name is omitted from the body of the indictment but is included in a caption that is referenced
in the body of the indictment.
32
Similarly, that court has found no error when the defendants
name is misstated in one part of the indictment but correctly stated in another part. In State v.
Sisk,
33
for example, the court of appeals held that it was not error to allow the State to amend the
defendants name, as stated in the body of an uttering a forged instrument indictment. In Sisk, the
28. 123 N.C. App. 361, 366 (1996), ad in part, 345 N.C. 749 (1997).
29. 139 N.C. App. 18, 27 (2000).
30. 160 N.C. App. 224, 226 (2003), ad, 358 N.C. 147 (2004).
31. 302 N.C. 613, 616-17 (1981).
32. See State v. Johnson, 77 N.C. App. 583, 584-85 (1985).
33. 123 N.C. App. 361, 365-66 (1996), ad in part, 345 N.C. 749 (1997).
indictments caption correctly stated the defendants name as the person charged, the indictment
incorporated that identication by reference in the body of the indictment, and the body of the
indictment specically identied defendant as the named payee of the forged document before
mistakenly referring to her as Janette Marsh Cook instead of Amy Jane Sisk. Te Sisk court also
noted that the defendant was not prejudiced by the error.
As with errors in the victims name, the courts have applied the doctrine of idem sonans to
errors in the defendants name, when the two names sound the same.
34
Te court of appeals has
allowed amendment of the defendants name when the error was clerical.
35

D. Address or County
G.S. 15A-924(a)(3) provides that a pleading must contain a statement that the oense was com-
mitted in a designated county. Tis allegation establishes venue. In State v. Spencer,
36
the court of
appeals held that the fact that the indictment alleged that the crime occurred in Cleveland County
but the evidence showed it occurred in Gaston County was not a fatal defect, because the variance
was not material. When the issue arose in another case, the court looked to the whole body of the
indictment to hold that the county of oense was adequately charged.
37

A related issue was presented in State v. James,
38
where the defendant argued that a mur-
der indictment was fatally defective because it omitted the defendants county of residence.
G.S. 15-144 sets out the essentials for a bill of homicide and provides that the indictment should
state, among other things, the name of the person accused and his or her county of residence.
Tat provision also states, however, that in these indictments, it is not necessary to allege matter
not required to be proved at trial. Relying on this language, James held that [s]ince the county of
. . . residence need not be proved, the omission of this fact does not make the indictment fatally
defective.
Te following cases deal with other issues pertaining to incorrect county names or addresses or
omission of one of those facts.
39
State v. Harrison, 165 N.C. App. 332 (2004) (indictment charging failure to register as a
sex oender was not defective by failing to identify defendants new address).
34. See supra pp. 1011 (discussing idem sonans); State v. Vincent, 222 N.C. 543, 544 (1943) (Vincent
and Vinson); see also State v. Higgs, 270 N.C. 111, 113 (1967) (Burford Murril Higgs and Beauford Merrill
Higgs).
35. See State v. Grigsby, 134 N.C. App. 315, 317 (1999) (trial court did not err in allowing the State to
amend the indictment to correct the spelling of defendants last name by one letter; [a] change in the spell-
ing of defendants last name is a mere clerical correction of the truest kind), reversed on other grounds, 351
N.C. 454 (2000).
36. __ N.C. App. __, 654 S.E.2d 69 (2007).
37. See State v. Almond, 112 N.C. App. 137, 147-48 (1993) (false pretenses indictments not fatally defec-
tive for failing to allege the county in which the oense occurred; indictments were captioned as from
Wilkes County and all but one contained the incorporating phrase in the county named above; although
the name of the county was not in the body of the indictment, the indictment contained sucient infor-
mation to inform defendant of the charges; as to the one indictment that did not include incorporating
language, it is undisputed that the named victim was located in Wilkes County and thus defendant had full
knowledge of the charges against him; nally, when all of the indictments are taken together, there is no
question that the activities for which defendant was charged took place within Wilkes County).
38. 321 N.C. 676, 680 (1988).
39. See also infra pp. 2123 (discussing burglary and related crimes).
State v. Hyder, 100 N.C. App. 270, 273-74 (1990) (trial court did not err by allowing the
State to amend a delivery of a controlled substance indictment; top left corner of indict-
ment listed Watauga as the county from which the indictment was issued; amendment
replaced Watauga County with Mitchell County; error was typographical and in no
way misled the defendant as to the nature of the charges).
State v. Lewis, 162 N.C. App. 277 (2004) (State was properly allowed to amend a habitual
felon indictment, which mistakenly noted the date and county of defendants probation
revocation instead of the date and county of defendants previous conviction; there also
was an error as to the county seat).
State v. Grady, 136 N.C. App. 394, 396 (2000) (trial court did not err in allowing amend-
ment of address of dwelling in maintaining dwelling for use of controlled substance
indictment).
E. Use of the Word Feloniously
Te use of the word feloniously in charging a misdemeanor will be treated as harmless surplus-
age.
40
However, felony indictments that do not contain the word feloniously are fatally defective,
unless the Legislature otherwise expressly provides.
41
State v. Blakney
42
explored the meaning of
the phrase unless the Legislature otherwise expressly provides. In that case, the defendant was
charged with possession of more than one and one-half ounces of marijuana, among other charges.
Although the possession charge did not contain the word feloniously, the defendant pleaded guilty
to felony possession of marijuana. Te defendant then appealed, challenging the suciency of the
possession charge, arguing that because it did not contain the word feloniously, it was invalid.
Reviewing the case law, the court of appeals indicated that the rule regarding inclusion of the word
feloniously in felony indictments developed when a felony was dened as an oense punishable by
either death or imprisonment. Tis denition made felonies dicult to distinguish from misde-
meanors, unless denominated as such in the indictment. In 1969, however, G.S. 14-1 was amended
to dene a felony as a crime that: (1) was a felony at common law; (2) is or may be punishable by
death; (3) is or may be punishable by imprisonment in the states prison; or (4) is denominated as a
felony by statute. Te court noted that [w]hile the felony-misdemeanor ambiguity that prompted
the [older] holdings . . . remains in eect today with respect to subsections (1) through (3), subsec-
tion (4) now expressly provides for statutory identication of felonies. Tus, it concluded, subsec-
tion (4) aords a defendant notice of being charged with a felony, even without the use of the word
feloniously, provided the indictment gives notice of the statute denominating the alleged crime
as a felony. Te court added, however, it is still better practice to include the word feloniously in a
felony indictment.
Turning to the case before it, the court noted that the indictment charging the defendant with
possession referred only to G.S. 90-95(a)(3), making it unlawful for any person . . . [t]o possess a
controlled substance, but not stating whether the crime is a felony or a misdemeanor. Because the
indictment stated that defendant possessed more than one and one-half ounces of marijuana[,] a
controlled substance which is included in Schedule VI of the North Carolina Controlled Substances
40. See State v. Higgins, 266 N.C. 589, 593 (1966); State v. Wesson, 16 N.C. App. 683, 686-87 (1972).
41. State v. Whaley, 262 N.C. 536, 537 (1964) (per curiam); see also State v. Fowler, 266 N.C. 528, 530-31
(1966) (noting that the State may proceed on a sucient bill of indictment).
42. 156 N.C. App. 671 (2003).
Act, it contained a reference to G.S. 90-95(d)(4). Tat provision states that if the quantity of the
marijuana possessed exceeds one and one-half ounces, the oense is a Class I felony. Te court
concluded, however, that although the indictments language would lead a defendant to G.S.
90-95(d)(4), it failed to include express reference to the relevant statutory provision on punishment
and therefore did not provide defendant with specic notice that he was being charged with a fel-
ony. Because the indictment failed to either use the word feloniously or to state the statutory sec-
tion indicating the felonious nature of the charge, the court held that the indictment was invalid.
Finally, the court noted that the State could re-indict defendant, in accordance with its opinion.
F. Statutory Citation
G.S. 15A-924(a)(6) provides that each count of a criminal pleading must contain a citation of
any applicable statute, rule, regulation, ordinance, or other provision of law alleged to have been
violated. Tat subsection also provides, however, that an error in the citation or its omission is not
ground for dismissal of the charges or for reversal of a conviction.
43
Te case law is in accord with
the statute and holds (1) that there is no fatal defect when the body of the indictment properly
alleges the crime but there is an error in the statutory citation;
44
and (2) that a statutory citation
may be amended when the body of the indictment puts the defendant on notice of the crime
charged.
45

43. For pleading city ordinances, see G.S. 160A-79 (codied ordinances must be pleaded by both section
number and caption; non-codied ordinances must be pleaded by caption). See also State v. Pallet, 283 N.C.
705, 712 (1973) (ordinance must be pleaded according to G.S. 106A-79).
44. State v. Lockhart, 181 N.C. App. 316 (2007) (an indictment that tracked the statutory language of
G.S. 148-45(g) properly charged the defendant with a work-release escape even though it contained an
erroneous citation to G.S. 148-45(b)); State v. Mueller, __ N.C. App. __, 647 S.E.2d 440 (2007) (indictments
cited G.S. 14-27.7A (statutory rape of a 13, 14, or 15 year old) as the statute allegedly violated but the body
of the instrument revealed that the intended statute was G.S. 14-27.4 (rst-degree statutory rape of a child
under 13); citing Jones and Reavis (discussed below), the court noted that although an indictment may
cite to the wrong statute, when the body of the indictment is sucient to properly charge defendant with
an oense, the indictment remains valid and the incorrect statutory reference does not constitute a fatal
defect and held that the indictments were valid and properly put the defendant on notice that he was being
charged under G.S. 14-27.4); State v. Jones, 110 N.C. App. 289, 291 (1993) (indictment suciently charged
arson; Even though the statutory reference was incorrect, the body of the indictment was sucient to
properly charge a violation. Te mere fact that the wrong statutory reference was used does not constitute
a fatal defect as to the validity of the indictment.). Cf. State v. Reavis, 19 N.C. App. 497, 498 (1973) ([E]ven,
assuming arguendo, that reference to the wrong statute is made in the bill of indictment . . . , this is not a
fatal aw in the suciency of the bill of indictment.); see also State v. Anderson, 259 N.C. 499, 501 (1963)
(Reference to a specic statute upon which the charge in a warrant is laid is not necessary to its validity.
Likewise, where a warrant charges a criminal oense but refers to a statute that is not pertinent, such refer-
ence does not in validate the warrant.); State v. Smith, 240 N.C. 99, 100-01 (1954) (warrant erroneously
cited G.S. 20-138 when it should have cited G.S. 20-139; reference . . . to the statute is not necessary to the
validity of the warrant) (citing G.S. 15-153); In Re Stoner, 236 N.C. 611, 612 (1952) (warrant erroneously
cited G.S. 130-255.1 when correct provisions was G.S. 130-225.2; reference . . . to a statute not immediately
pertinent would be regarded as surplusage).
45. State v. Hill, 362 N.C. 169 (2008) (trial court did not err by allowing the State to amend indictments
to correct a statutory citation; the indictments incorrectly cited a violation of G.S. 14-27.7A (sexual oense
against a 13, 14, or 15 year old), but the body of the indictment correctly charged the defendant with a vio-
lation of G.S. 14-27.4 (sexual oense with a victim under 13)).
G. Case Number
Te court of appeals has held that the State may amend the case numbers included in the
indictment.
46
H. Completion By Grand Jury Foreperson
G.S. 15A-623(c) requires the grand jury foreperson to indicate on the indictment the witness or
witnesses sworn and examined before the grand jury. It also provides, however, that failure to
comply with this requirement does not invalidate a bill of indictment. Te cases are in accord with
this statutory provision.
47

G.S. 15A-644(a) requires that the indictment contain the signature of the foreperson or acting
foreperson attesting to the concurrence of twelve or more grand jurors in the nding of a true
bill. However, failure to check the appropriate box on the indictment for True Bill or Not a
True Bill is not a fatal defect, when there is either evidence that a true bill was presented or no
evidence indicating that it was not a true bill, in which case a presumption of validity has been
applied.
48
I. Prior Convictions
G.S. 15A-928(a) provides that when a prior conviction increases the punishment for an oense
and thereby becomes an element of it, the indictment or information may not allege the previous
conviction. If a reference to a prior conviction is contained in the statutory name or title of the
oense, the name or title may not be used in the indictment or information; rather an improvised
name or title must be used which labels and distinguishes the crime without reference to the prior
conviction.
49
G.S. 15A-928(b) provides that the indictment or information for the oense must be
accompanied by a special indictment or information, led with the principal pleading, charging
that the defendant was previously convicted of a specied oense. At the prosecutors option, the
special indictment or information may be incorporated into the principal indictment as a separate
count.
50
Similar rules apply regarding the requirement of a separate pleading for misdemeanors
tried de novo in superior court when the fact of the prior conviction is an element of the oense.
51

46. See State v. Rotenberry, 54 N.C. App. 504, 510 (1981) (no error to allow the State to amend the case
number listed in the indictment).
47. See State v. Wilson, 158 N.C. App. 235, 238 (2003) (indictment for common law robbery was not
fatally defective even though grand jury foreperson failed to indicate that the witnesses identied on the
face of the indictment appeared before the grand jury and gave testimony; failure to comply with G.S.
15A-623(c) does not vitiate a bill of indictment or presentment) (citing State v. Mitchell, 260 N.C. 235 (1963)
(indictment is not fatally defective when the names of the witnesses to the grand jury are not marked));
State v. Allen, 164 N.C. App. 665 (2004) (citing Mitchell).
48. See State v. Midyette, 45 N.C. App. 87, 89 (1980) (an indictment is not invalid merely because there
is no specic expression in the indictment that it is a true bill; record revealed that indictments were
returned as true bills); State v. Hall, 131 N.C. App. 427 (1998) (because the parties provided no evidence of
the presentation of the bill of indictment to the trial court, the court relied on the presumption of validity
of the trial courts decision to go forward with the case; defendant provided no evidence that the trial court
was unjustied in assuming jurisdiction), ad, 350 N.C. 303 (1999).
49. G.S. 15A-928(a).
50. G.S. 15A-928(b).
51. G.S. 15A-928(d).
In one case, the court of appeals held that the trial court did not err by allowing the State to
amend a felony stalking indictment that had alleged the prior conviction that elevated the oense
to a felony in the same count as the substantive felony.
52
Te trial court had allowed the State to
amend the indictment to separate the allegation regarding the prior conviction into a dierent
count, thus bringing the indictment into compliance with G.S. 15A-928.
53
Other cases dealing
with charging of a previous conviction are discussed in the oense specic sections below under
section III.
J. Sentencing Factors
In Blakely v. Washington
54
the United States Supreme Court held that any factor, other than a prior
conviction, that increases a sentence above the statutory maximum must be submitted to a jury
and proved beyond a reasonable doubt. Te case had signicant implications on North Carolinas
sentencing procedure. For a full discussion of the impact of Blakely on North Carolinas sentencing
schemes, see Jessica Smith, North Carolina Sentencing after Blakely v. Washington and the Blakely
Bill (September 2005) (available on-line at http://www.iogcriminal.unc.edu/Blakely%20Update.pdf).
Post-Blakely, the new statutory rules for felony sentencing under Structured Sentencing provide
that neither the statutory aggravating factors in G.S. 15A-1340.16(d)(1) through (19) nor the prior
record point in G.S. 15A-1340.14(b)(7) need to be included in an indictment or other charging
instrument.
55
However, the catch-all aggravating factor under G.S. 15A-1340.16(d)(20) must be
charged.
56
Additionally, other notice requirements apply.
57
For the pleading and notice requirements
for aggravating factors that apply in sentencing of impaired driving oenses, see G.S. 20-179.
III. Offense Specic Issues
A. Homicide
58
G.S. 15-144 prescribes a short-form indictment for murder and manslaughter. It provides:
In indictments for murder and manslaughter, it is not necessary to allege matter not
required to be proved on the trial; but in the body of the indictment, after naming the
person accused, and the county of his residence, the date of the oense, the averment
with force and arms, and the county of the alleged commission of the oense, as is
now usual, it is sucient in describing murder to allege that the accused person feloni-
ously, willfully, and of his malice aforethought, did kill and murder (naming the person
killed), and concluding as is now required by law; and it is sucient in describing man-
slaughter to allege that the accused feloniously and willfully did kill and slay (naming
52. See generally Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of
Crime pp. 136-37 (6th ed. 2007) (describing stalking crimes).
53. State v. Stephens, __ N.C. App. __, 655 S.E.2d 435 (2008).
54. 542 U.S. 296 (2004).
55. G.S. 15A-1340.16(a4) through (a5).Te statute sets out other prior record points, see G.S.
15A-1340.14(b), but only this one must be pleaded.
56. G.S. 15A-1340.16(a4).
57. G.S. 15A-1340.16(a6).
58. For case law pertaining to the date of oense in homicide indictments, see supra p. 4.
the person killed), and concluding as aforesaid; and any bill of indictment containing
the averments and allegations herein named shall be good and sucient in law as an
indictment for murder or manslaughter as the case may be.
A murder indictment that complies with the requirements of G.S. 15-144 will support a con-
viction for rst- or second-degree murder.
59
A rst-degree murder indictment that conforms to
G.S. 15-144 need not allege the theory of the oense, such as premeditation and deliberation,
60
or
aiding and abetting.
61
It also will support a conviction for attempted rst-degree murder,
62
even if
the short-form has been modied with the addition of the words attempt to.
63
If the indictment
otherwise conforms with G.S. 15-144 but alleges a theory, the State will not be limited to that
theory at trial.
64
A short-form murder indictment will not support a conviction for simple assault,
assault inicting serious injury, assault with intent to kill, or assault with a deadly weapon.
65
Te North Carolina appellate courts repeatedly have upheld the short form murder indict-
ment as constitutionally valid.
66
Tat does not mean, however, that short-form murder indict-
ments are completely insulated from challenge. In State v. Bullock,
67
for example, the court held
that although the short form murder indictment is authorized by G.S. 15-144, the indictment
for attempted rst-degree murder was invalid because of the omission of words with malice
aforethought.
68
Te following cases deal with other types of challenges to homicide pleadings.
State v. Hall, 173 N.C. App. 735, 737-38 (2005) (magistrates order properly charged
the defendant with misdemeanor death by vehicle; the order clearly provided that the
charge was based on the defendants failure to secure the trailer to his vehicle with
safety chains or cables as required by G.S. 20-123(b)).
State v. Dudley, 151 N.C. App. 711, 716 (2002) (in a felony murder case, the State is not
required to secure a separate indictment for the underlying felony) (citing State v. Carey,
288 N.C. 254, 274 (1975), vacated in part by, 428 U.S. 904 (1976)).
59. See, e.g., State v. King, 311 N.C. 603, 608 (1984).
60. See, e.g., State v. Braxton, 352 N.C. 158, 174-75 (2000); see generally G.S. 14-17 (proscribing rst-
degree murder).
61. State v. Glynn, 178 N.C. App. 689, 694-95 (2006).
62. State v. Jones, 359 N.C. 832, 835-38 (2005); State v. Watkins, 181 N.C. App. 502, 506 (2007); State v.
Reid, 175 N.C. App. 613, 617-18 (2006); State v. McVay, 174 N.C. App. 335, 337-38 (2005).
63. Jones, 359 N.C. at 838.
64. See, e.g., State v. Moore, 284 N.C. 485, 495-96 (1974).
65. State v. Parker, __ N.C. App. __, 653 S.E.2d 6 (2007) (assault); State v. Whiteside, 325 N.C. 389,
402-04 (1989) (assault, assault inicting serious injury, and assault with intent to kill).
66. See, e.g., State v. Hunt, 357 N.C. 257 (2003); State v. Squires, 357 N.C. 529, 537 (2003); State v.
Wissink, 172 N.C. App. 829, 834-35 (2005), revd in part on other grounds, 361 N.C. 418 2007); State v.
Hasty, 181 N.C. App. 144, 146 (2007).
67. 154 N.C. App. 234, 243-45 (2002).
68. Note the contrast between this case and State v. McGee, 47 N.C. App. 280, 283 (1980), which dealt
with a charge of second-degree murder. Id. In McGee, the court rejected the defendants argument that a
bill for second-degree murder should be quashed because it did not contain the word aforethought modi-
fying malice. Id. (while second-degree murder requires malice as an element, it does not require malice
aforethought; aforethought means with premeditation and deliberation as required in murder in the
rst-degree; aforethought is not an element of second-degree murder) (citing State v. Duboise, 279 N.C. 73
(1971)).
State v. Sawyer, 11 N.C. App. 81, 84 (1971) (indictment charging that defendant did,
unlawfully, willfully and feloniously kill and slay one Terry Allen Bryan suciently
charged involuntary manslaughter).
B. Arson
Consistent with the requirement that the indictment must allege all essential elements of the
oense, State v. Scott
69
held that a rst-degree arson indictment was invalid because it failed to
allege that the building was occupied. Also consistent with that requirement is State v. Jones,
70

holding that an indictment alleging that the defendant maliciously burned a mobile home that was
the dwelling house of a named individual was sucient to charge second-degree arson.
An indictment charging a defendant with arson is sucient to support a conviction for burning
a building within the curtilage of the house; the specic outbuilding need not be specied in the
indictment.
71
C. Kidnapping and Related Offenses
In order to properly indict a defendant for rst-degree kidnapping, the State must allege the
essential elements of kidnapping in G.S. 14-39(a),
72
and at least one of the elements of rst-degree
kidnapping in G.S. 14-39(b).
73
An indictment that fails to allege one of the elements of rst-degree
kidnapping in G.S. 14-39(b) will, however, support a conviction of second-degree kidnapping.
74

69. 150 N.C. App. 442, 451-53 (2002).
70. 110 N.C. App. 289 (1993).
71. State v. Teeter, 165 N.C. App. 680, 683 (2004).
72. G.S. 14-39(a) provides:
Any person who shall unlawfully conne, restrain, or remove from one place to another, any
other person 16 years of age or over without the consent of such person, or any other person
under the age of 16 years without the consent of a parent or legal custodian of such person, shall
be guilty of kidnapping if such connement, restraint or removal is for the purpose of:
(1) Holding such other person for a ransom or as a hostage or using such other person as a shield;
or
(2) Facilitating the commission of any felony or facilitating ight of any person following the com-
mission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so conned, restrained or removed or
any other person; or
(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.12.
(5) Tracking another person with the intent that the other person be held in involuntary servi-
tude or sexual servitude in violation of G.S. 14-43.11.
(6) Subjecting or maintaining such other person for sexual servitude in violation of G.S. 14-43.13.
73. See State v. Bell, 311 N.C. 131, 137 (1984). G.S. 14-39(b) provides:
Tere shall be two degrees of kidnapping as dened by subsection (a). If the person kid-
napped either was not released by the defendant in a safe place or had been seriously injured or
sexually assaulted, the oense is kidnapping in the rst degree and is punishable as a Class C
felony. If the person kidnapped was released in a safe place by the defendant and had not been
seriously injured or sexually assaulted, the oense is kidnapping in the second degree and is
punishable as a Class E felony.
74. See Bell, 311 N.C. at 137.
Te victims age is not an essential element of kidnapping.
75
Terefore, if an indictment alleges that
the victim has attained the age of sixteen but the evidence at trial reveals that the victim was not
yet sixteen, there is no fatal variance.
76
Kidnapping requires, in part, that the defendant conne, restrain, or remove the victim. A
number of cases hold that the trial judge only may instruct the jury on theories of kidnapping
alleged in the indictment.
77
Although contrary case law exists,
78
it has been called in question.
79
If
the indictment alleges connement, restraint, and removal (in the conjunctive), no reversible error
occurs if the trial court instructs the jury on connement, restraint, or removal (the disjunctive).
80
In addition to the element described above, kidnapping requires that the connement, restraint,
or removal be done for one of the following purposes: holding the victim as a hostage or for
ransom, using the victim as a shield, facilitating the commission of a felony or ight following
commission of a felony, doing serious bodily harm to or terrorizing the victim or any other person,
holding the victim in involuntary servitude, tracking a person with the intent that the person
be held in involuntary or sexual servitude, or subjecting or maintaining the person for sexual ser-
vitude.
81
If the evidence at trial regarding the purpose of the kidnapping does not conform to the
indictment, there is a fatal variance.
82
Tus, for example, a fatal variance occurs if the indictment
75. State v. Tollison, __ N.C. App. __, 660 S.E.2d 647 (2008).
76. Id. Te court viewed the victims age as a factor that relates to the States proof regarding consent;
if the victim is under sixteen years old, the State must prove that the unlawful connement, restraint, or
removal occurred without the consent of a parent or guardian.
77. State v. Tucker, 317 N.C. 532, 536-40 (1986) (plain error to instruct on restraint when indictment
alleged only removal); State v. Bell, 166 N.C. App. 261, 263-65 (2004) (trial court erred in instructing on
restraint or removal when indictment alleged connement and restraint but not removal); State v. Smith,
162 N.C. App. 46 (2004) (trial court erred in instructing the jury that it could nd the defendant guilty of
kidnapping if he unlawfully conned, restrained, or removed the victim when the indictment only alleged
unlawful removal); State v. Dominie, 134 N.C. App. 445, 447 (1999) (when indictment alleged only removal,
trial judge improperly instructed that the jury could convict if defendant conned, restrained, or removed
the victim).
78. See State v. Raynor, 128 N.C. App. 244, 247-49 (1998) (although indictment alleged restraint, there
was no plain error in the instructions that allowed conviction on either restraint or removal).
79. Te later case of State v. Dominie, 134 N.C. App. 445, 449 (1999), recognized that Raynor is inconsis-
tent with Tucker, discussed above.
80. State v. Anderson, 181 N.C. App. 655, 664-65 (2007); State v. Quinn, 166 N.C. App. 733, 738 (2004).
81. See G.S. 14-39.
82. State v. Tirado, 358 N.C. 551, 574-75 (2004) (the trial court erred when it charged the jury that it
could nd the defendants guilty if they removed two named victims for the purpose of facilitating the
commission of robbery or doing serious bodily injury when the indictment alleged only the purpose of
facilitating the commission of a felony; the trial court also erred when it instructed the jury that it could
nd the defendant guilty of kidnapping a third victim if they removed the victim for the purpose of facili-
tating armed robbery or doing serious bodily injury but the indictment alleged only the purpose of doing
serious bodily injury; errors however did not rise to the level of plain error); State v. Morris, __ N.C. App.
__, 648 S.E.2d 909 (2007) (the trial court erred when it allowed the State to amend an indictment changing
the purpose from facilitating a felony to facilitating inicting serious injury; rejecting the States argument
that the additional language in the indictment stating that the victim was seriously injured charged the
amended purpose and concluding that such language was intended merely to elevate the charge to rst-
degree kidnapping); State v. Faircloth, 297 N.C. 100, 108 (1979) (fatal variance between indictment alleging
purpose of facilitating ight and evidence that showed kidnapping for the purpose of facilitating rape);
State v. Morris, 147 N.C. App. 247, 250-53 (2001) (fatal variance between indictment alleging purpose of
alleges a purpose of facilitating ight from a felony but the evidence at trial shows a purpose of
facilitating a felony.
83
When the indictment alleges that the purpose was to facilitate a felony, the indictment need not
specify the crime that the defendant intended to commit.
84
Te fact that the jury does not convict
the defendant of the crime alleged to have been facilitated does not create a fatal variance.
85
Regarding the related oense of felonious restraint, State v. Wilson
86
held that transportation by
motor vehicle or other conveyance is an essential element that must be alleged in an indictment in
order to properly charge that crime, even if the indictment properly charged kidnapping.
87
D. Burglary, Breaking or Entering, and Related Crimes
1. Burglary and Breaking or Entering
Both burglary and felonious breaking or entering require that the defendants acts be commit-
ted with an intent to commit a felony or larceny in the dwelling or building. Indictments for
these oenses need not allege the specic felony or larceny intended to be committed therein.
88

However, if the indictment alleges a specic felony, that allegation may not be amended and a
variance between the charge and the proof at trial will be fatal. For example, in State v. Silas,
89

the indictment alleged that the defendant broke and entered with the intent to commit the felony
of murder. At the charge conference, the trial judge allowed the State to amend the indictment
to allege an intent to commit assault with a deadly weapon with intent to kill inicting serious
injury or assault with a deadly weapon inicting serious injury. On appeal, the court held that
because the State indicted the defendant for felonious breaking or entering based upon a theory of
facilitating the commission of a felony and evidence that showed purpose was facilitating defendants ight
after commission of a felony), ad 355 N.C. 488 (2002).
83. Faircloth, 297 N.C. 100.
84. State v. Freeman, 314 N.C. 432, 434-37 (1985) (rejecting defendants argument that rst-degree kid-
napping indictment was defective because it failed to specify the felony that defendant intended to commit
at the time of the kidnapping); State v. Escoto, 162 N.C. App. 419 (2004) (burglary and kidnapping indict-
ments need not allege the specic felony a defendant intended to commit at the time of the criminal act;
Apprendi does not require a dierent result). As discussed in the section that follows, the appellate division
has held, in a breaking or entering case, that if an intended felony that need not be alleged is in fact alleged,
that allegation may not be amended.
85. State v. Quinn, 166 N.C. App. 733 (2004) (the indictment alleged that the defendants actions were
taken to facilitate commission of statutory rape; the court rejected the defendants argument that because
the jury could not reach a verdict on the statutory rape charge, there was a fatal variance; the court
explained that the statute is concerned with the defendants intent and that there was ample evidence in the
record to support the jurys verdict).
86. 128 N.C. App. 688, 694 (1998).
87. Te court rejected the States argument that its holding circumvented the provision in G.S. 14-43.3
that felonious restraint is a lesser included oense of kidnapping.
88. State v. Parker, 350 N.C. 411, 424-25 (1999) (indictment alleging that defendant broke and entered
an apartment with the intent to commit a felony therein was not defective; a burglary indictment need
not specify the felony that defendant intended to commit); State v. Worsley, 336 N.C. 268, 279-81 (1994)
(rejecting defendants argument that the indictment charging him with rst-degree burglary was defective
because it failed to specify the felony he intended to commit when he broke into the apartment); Escoto, 162
N.C. App. 419 (2004) (burglary and kidnapping indictments need not allege the specic felony a defendant
intended to commit at the time of the criminal act; Apprendi does not require a dierent result).
89. 360 N.C. 377 (2006).
intended murder, it was required to prove defendant intended to commit murder upon breaking
or entering the apartment and that, therefore, the amendment to the original indictment was a
substantial alteration.
90

If the indictment alleges a specic intended felony and the trial judge instructs the jury on an
intended felony that is a greater oense (meaning that the intended felony that was charged in the
indictment is a lesser-included oense of the intended felony included in the jury instructions), the
variance does not create prejudicial error.
91
When the intended felony is a larceny, the indictment need not describe the property that the
defendant intended to steal,
92
or allege its owner.
93
At least one case has held that indictments for these oenses will not be considered defective
for failure to properly allege ownership of the building.
94
However, the indictment must identify
the building with reasonable particularity so as to enable the defendant to prepare [a] defense and
plead his [or her] conviction or acquittal as a bar to further prosecution for the same oense.
95

Ideally, indictments for these oenses would allege the premises address.
96
Examples of cases on
point are summarized below.
State v. Miller, 271 N.C. 646, 653-54 (1967) (fatal variance between indictment charging
felony breaking and entering a building occupied by one Friedmans Jewelry, a corpora-
tion and evidence that building was occupied by Friedmans Lakewood, Incorporated;
evidence showed that there were three Friedmans stores in the area and that each was a
separate corporation).
State v. Smith, 267 N.C. 755, 756 (1966) (indictment charging defendant with breaking
and entering a certain building occupied by one Chatham County Board of Education
was defective; although it appears . . . that he actually entered the Henry Siler School
in Siler City but under the general description of ownership in the bill, it could as well
been any other school building or other property owned by the Chatham County Board
of Education).
State v. Benton, 10 N.C. App. 280, 281 (1970) (fatal variance between indictment charg-
ing defendant with breaking and entering the building located 2024 Wrightsville
Ave., Wilmington, N.C., known as the Eakins Grocery Store, William Eakins, owner/
90. See also State v. Goldsmith, __ N.C. App. __, 652 S.E.2d 336 (2007) (because the State indicted the
defendant for rst-degree burglary based upon the felony of armed robbery, it was required to prove defen-
dant intended to commit armed robbery upon breaking and entering into the residence).
91. State v. Farrar, 361 N.C. 675 (2007) (no prejudicial error when the indictment alleged that the
intended felony was larceny and the judge instructed the jury that the intended felony was armed robbery).
92. See State v. Coey, 289 N.C. 431, 437 (1976).
93. See State v. Norman, 149 N.C. App. 588, 592-93 (2002).
94. See Norman, 149 N.C. App. at 591-92 (felonious breaking or entering indictment need not allege
ownership of the building; it need only identify the building with reasonable particularity; indictment
alleging that defendant broke and entered a building occupied by Quail Run Homes located at 4207 North
Patterson Avenue in Winston-Salem, North Carolina was sucient). But see State v. Brown, 263 N.C. 786
(1965) (fatal variance between the felony breaking or entering indictment and the proof at trial; indictment
identied property as a building occupied by Stroup Sheet Metal Works, H.B. Stroup, Jr., owner and evi-
dence at trial revealed that the occupant and owner was a corporation).
95. See Norman, 149 N.C. App. at 592 (quotation omitted).
96. See id.
possessor and evidence which related to a store located at 2040 Wrightsville Avenue in
the City of Wilmington, owned and operated by William Adkins).
State v. Coey, 289 N.C. 431, 438 (1976) (upholding a burglary indictment that charged
that the defendant committed burglary in the county aforesaid [Rutherford], the dwell-
ing house of one Doris Matheny there situate, and then and there actually occupied
by one Doris Matheny; distinguishing State v. Smith, 267 N.C. 755 (1966), discussed
above, on grounds that there was no evidence that Doris Matheny owned and occupied
more than one dwelling house in Rutherford County).
State v. Davis, 282 N.C. 107, 113-14 (1972) (no fatal variance between indictment alleg-
ing breaking and entering of a the dwelling house of Nina Ruth Baker located at 840
Washington Drive, Fayetteville, North Carolina and evidence that Baker lived at 830
Washington Drive; an indictment stating simply dwelling house of Nina Ruth Baker in
Fayetteville, North Carolina would have been sucient).
State v. Sellers, 273 N.C. 641, 650 (1968) (upholding breaking and entering indictment
that identied the building as occupied by one Leesona Corporation, a corporation).
State v. Ly,__ N.C. App. __, 658 S.E.2d 300 (2008) (breaking or entering indictment
suciently alleged the location and identity of the building entered; indictment alleged
that the defendants broke and entered a building occupied by [the victim] used as a
dwelling house located at Albermarle, North Carolina; although the victim owned
several buildings, including six rental houses, the evidence showed there was only one
building where the victim actually lived).
State v. Vawter, 33 N.C. App. 131, 134-36 (1977) (no fatal variance between breaking
and entering indictment that identied the premises as a building occupied by E.L.
Kiser (sic) and Company, Inc., a corporation d/b/a Shop Rite Food Store used as retail
grocery located at Old U.S. Highway #52, Rural Hall, North Carolina and evidence that
showed that the Kiser family owned and operated the Shop Rite Food Store located on
Old U.S. 52 at Rural Hall; no evidence was presented regarding the corporate ownership
or occupancy of the store).
State v. Shanklin, 16 N.C. App. 712, 714-15 (1972) (felonious breaking or entering indict-
ment that identied the county in which the building was located and the business in
the building was not defective; court noted that better practice would be to identify
the premises by street address, highway address, rural road address, or some clear
description or designation).
State v. Paschall, 14 N.C. App. 591, 592 (1972) (indictment charging breaking and
entering a building occupied by one Dairy Bar, Inc, Croasdaile Shopping Center in the
County of Durham was not fatally defective).
State v. Carroll, 10 N.C. App. 143, 144-45 (1970) (no fatal defect in felonious breaking or
entering indictment that specied a building occupied by one Duke Power Company,
Inc; although the indictment must identify the building with reasonable particular-
ity, [i]t would be contrary to reason to suggest that the defendant could have . . .
thought that the building . . . was one other than the building occupied by Duke Power
Company in which he was arrested; noting that [i]n light of the growth in population
and in the number of structures (domestic, business and governmental), the prosecuting
ocers of this State would be well advised to identify the subject premises by street
address, highway address, rural road address, or some clear description and designation
to set the subject premises apart).
State v. Cleary, 9 N.C. App. 189, 191 (1970) (building occupied by one Clarence
Hutchens in Wilkes County was sucient description).
State v. Melton, 7 N.C. App. 721, 724 (1970) (approving of an indictment that failed to
identify the premises by street address, highway address, or other clear designation;
noting that a practically identical indictment was approved in Sellers, 273 N.C. 641,
discussed above).
State v. Roper, 3 N.C. App. 94, 95-96 (1968) (felonious breaking or entering indictment
that identied building as in the county aforesaid, a certain dwelling house and build-
ing occupied by one Henry Lane was sucient).
One case held that there was no fatal variance when a felony breaking or entering indictment
alleged that the defendant broke and entered a building occupied by Lindsay Hardison, used
as a residence but the facts showed that the defendant broke and entered a building within the
curtilage of Hardisons residence.
97
Te court reasoned that the term residence includes build-
ings within the curtilage of the dwelling house, the indictment enabled the defendant to prepare
for trial, and the occupancy of a building was not an element of the oense charged. Tus, it
concluded that the word residence in the indictment was surplusage and the variance was not
material.
2. Breaking into Coin- or Currency-Operated Machine
An indictment alleging breaking into a coin- or currency-operated machine in violation of
G.S. 14-56.1 need not identify the owner of the property, as that is not an element of the crime
charged.
98
E. Robbery
A robbery indictment need not allege lack of consent by the victim, that the defendant knew he
or she was not entitled to the property, or that the defendant intended to permanently deprive the
victim of the property.
99
Additionally, because the gist of the oense of robbery is not the taking of
personal property, but a taking by force or putting in fear,
100
the actual legal owner of the property
is not an essential element of the crime. As the following cases illustrate, the indictment need only
negate the idea that the defendant was taking his or her own property.
State v. Tompson, 359 N.C. 77, 108 (2004) (rejecting the defendants argument that
the trial court erred in failing to dismiss the robbery indictment because it failed to
allege that the victim, Dominos Pizza, was a legal entity capable of owning property;
an indictment for armed robbery is not fatally defective simply because it does not
correctly identify the owner of the property taken; additionally the description of the
97. State v. Jones, __ N.C. App. __, 655 S.E.2d 915 (2008).
98. State v. Price, 170 N.C. App. 672, 674-75 (2005).
99. State v. Patterson, 182 N.C. App. 102 (2007).
100. See State v. Jackson, 306 N.C. 642, 654 (1982).
property in the indictment was sucient to demonstrate that the property did not
belong to the defendant).
State v. Pratt, 306 N.C. 673, 681 (1982) (As long as it can be shown defendant was not
taking his own property, ownership need not be laid in a particular person to allege and
prove robbery.).
State v. Jackson, 306 N.C. 642, 653-54 (1982) (variance between indictment charging
that defendant took property belonging to the Furniture Buyers Center and evidence
that the property belonged to Albert Rice could not be fatal because [a]n indictment for
robbery will not fail if the description of the property is sucient to show it to be the
subject of robbery and negates the idea that the accused was taking his own property)
(quotation omitted).
State v. Spillars, 280 N.C. 341, 345 (1972) (same).
State v. Rogers, 273 N.C. 208, 212-13 (1968) (variance between indictment and evidence
as to ownership of property was not fatal; it is not necessary that ownership of the
property be laid in any particular person in order to allege and prove . . . armed rob-
bery), overruled on other grounds by, State v. Hurst, 320 N.C. 589 (1987).
State v. Burroughs, 147 N.C. App. 693, 695-96 (2001) (robbery indictment was not fatally
defective; indictment properly specied the name of the person from whose presence
the property was attempted to be taken, whose life was endangered, and the place that
the oense occurred).
State v. Bartley, 156 N.C. App. 490, 500 (2003) (robbery indictment not defective
for failure to suciently identify the owner of the property allegedly stolen, the key
inquiry is whether the indictment is sucient to negate the idea that the defendant
was taking his own property).
Relying on the gist of the oensea taking by force or putting in fearthe courts have been
lenient with regard to variances between the personal property alleged in the indictment and the
personal property identied by the evidence at trial, and amendments to the charging language
describing the personal property are allowed.
101

101. State v. McCallum, __ N.C. App. __, 653 S.E.2d 915 (2007) (the trial court did not err by permitting
the State to amend the indictments to remove allegations concerning the amount of money taken during
the robberies; the amendments left the indictments alleging that defendant took an unspecied amount
of U.S. Currency; the allegations as to the value of the property were mere surplusage); State v. McCree,
160 N.C. App. 19, 30-31 (2003) (no fatal variance in armed robbery indictment alleging that defendant
took a wallet and its contents, a television, and a VCR; the gist of the oense is not the taking of personal
property, but rather a taking or attempted taking by force or putting in fear of the victim by the use of a
dangerous weapon; evidence showed that defendant took $50.00 in cash from the victim upstairs and his
accomplice took the television and VCR from downstairs; indictment properly alleged a taking by force or
putting in fear); State v. Poole, 154 N.C. App. 419, 422-23 (2002) (no fatal variance when robbery indictment
alleged that defendant attempted to steal United States currency from a named victim; at trial, the State
presented no evidence identifying what type of property the defendant sought to obtain; the gravamen of
the oense charged is the taking by force or putting in fear, while the specic owner or the exact property
taken or attempted to be taken is mere surplusage).
A robbery indictment must name a person who was in charge of or in the presence of the prop-
erty at the time of the robbery.
102
When a store is robbed, this person is typically the store clerk,
not the owner.
103

Finally, no error occurs when a trial court allows an indictment for attempted armed robbery
to be amended to charge the completed oense of armed robbery; the elements of the oenses are
the same and G.S. 14-87 punishes the attempt the same as the completed oense.
104
An indictment for robbery with a dangerous weapon must name the weapon and allege either
that the weapon was a dangerous one or facts that demonstrate its dangerous nature.
105

F. Assaults
1. Generally
Although it is better practice to include allegations describing the assault,
106
a pleading suciently
charges assault by invoking that term in the charging language.
107
If the indictment adds detail
regarding the means of the assault (e.g., by shooting) and that detail is not proved at trial, the
language will be viewed as surplusage and not a fatal variance.
108
A simple allegation of assault
is insucient when the charge rests on a particular theory of assault, such as assault by show of
violence or assault by criminal negligence.
109

102. State v. Burroughs, 147 N.C. App. 693, 696 (2001) (While an indictment for robbery need not
allege actual legal ownership of property, the indictment must at least name a person who was in charge or
in the presence of the property at the time of the robbery.) (citations omitted); State v. Moore, 65 N.C.
App. 56, 61, 62 (1983) (robbery indictment was fatally defective; indictment must at least name a person
who was in charge or in the presence of the property).
103. State v. Matthews, 162 N.C. App. 339 (2004) (indictment was not defective by identifying the
target of the robbery as the store employee and not the owner of the store); State v. Setzer, 61 N.C. App.
500, 502-03 (1983) (indictment alleging that by use of a pistol whereby the life of Sheila Chapman was
endangered and threatened, the defendant took personal property from Te Pantry, Inc., suciently alleges
the property was taken from Sheila Chapman; it is clear from this allegation that Sheila Chapman was the
person in control of the corporations property and from whose possession the property was taken).
104. State v. Trusell, 170 N.C. App. 33, 36-38 (2005).
105. State v. Marshall, __ N.C. App. __, 656 S.E.2d 709 (2008) (armed robbery indictment was defective;
indictment alleged that the defendant committed the crime by means of an assault consisting of having
in possession and threatening the use of an implement, to wit, keeping his hand in his coat demanding
money).
106. See Farb, Arrest Warrant & Indictment Forms (UNC School of Government 2005) at
G.S. 14-33(a) (simple assault).
107. State v. Torne, 238 N.C. 392, 395 (1953) (warrant charging that the defendant unlawfully, willfully
violated the laws of North Carolina . . . by . . . assault on . . . one Harvey Tomas was sucient to charge a
simple assault).
108. State v. Pelham, 164 N.C. App. 70 (2004) (indictment alleging that defendant assaulted the victim
by shooting at him was not fatally defective even though there was no evidence of a shooting; the phrase
was surplusage and should be disregarded); State v. Muskelly, 6 N.C. App. 174, 176-77 (1969) (indictment
charging assault with a deadly weapon was sucient; words by shooting him were surplusage).
109. State v. Hines, 166 N.C. App. 202, 206-08 (2004) (the trial court erred by instructing the jury
that it could convict on a theory of criminal negligence when the indictment for aggravated assault on a
handicapped person alleged that the defendant did . . . assault and strike the victim causing trauma to
her head); State v. Garcia, 146 N.C. App. 745, 746-47 (2001) (warrant insuciently alleged assault by show
of violence; warrant alleged an assault and listed facts supporting the elements of a show of violence and a
2. Injury Assaults
When the assault involves serious injury, the injury need not be specically described.
110
It is, how-
ever, better practice to describe the injury.
111
3. Deadly Weapon Assaults
A number of assault oenses involve deadly weapons. Much of the litigation regarding the su-
ciency of assault indictments pertains to the charging language regarding deadly weapons. As the
cases annotated below reveal, an indictment must name the weapon and either state that it was a
deadly weapon or include facts demonstrating its deadly character. Te leading case on point is
State v. Palmer,
112
in which the court upheld an indictment charging that the defendant commit-
ted an assault with a stick, a deadly weapon. Te indictment did not contain any description of
the size, weight, or other properties of the stick that would reveal its deadly character. Reviewing
prior case law, the court held:
it is sucient for indictments seeking to charge a crime in which one of the elements
is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly
that the weapon used was a deadly weapon or to allege such facts as would necessarily
demonstrate the deadly character of the weapon.
Te cases applying this rule are summarized below.
State v. Moses, 154 N.C. App. 332, 334-37 (2002) (count of indictment charging assault
with deadly weapon was invalid because it did not identify the deadly weapon; charge
was not saved by allegation of the specic deadly weapon in a separate count in the
indictment).
State v. Brinson, 337 N.C. 764, 766-69 (1994) (original assault with deadly weapon
indictment stated that defendant assaulted the victim with his sts, a deadly weapon,
by hitting the victim over the body with his sts and slamming his head against the cell
bars and oor; was not error for the trial court to allow the State to amend the indict-
ment on the day of trial to charge that defendant assaulted the victim with his sts by
hitting the victim over the body with his sts and slamming his head against the cell
bars, a deadly weapon, and oor; original indictment satised the Palmer test: it speci-
cally referred to the cell bars and oor and recited facts that demonstrated their deadly
character; identifying sts as deadly weapons did not preclude the state from identify-
ing at trial other deadly weapons when the indictment both describes those weapons
and demonstrates their deadly character).
deviation from normal activities by the victim but failed to allege facts supporting the element of reason-
able apprehension of immediate bodily harm or injury on the part of the person assailed).
110. See State v. Gregory, 223 N.C. 415, 420 (1943) (indictment charging that defendant assaulted the
victim and inicted serious injuries is sucient).
111. See Farb, Arrest Warrant & Indictment Forms (UNC School of Government 2005) at
G.S. 14-33(c)(1) (assault inicting serious injury).
112. 293 N.C. 633, 634-44 (1977)
State v. Grumbles, 104 N.C. App. 766, 769-70 (1991) (indictment more than adequately
charged assault with a deadly weapon; indictment named defendants hands as the
deadly weapon and expressly stated defendants hands were used as deadly weapons).
State v. Everhardt, 96 N.C. App. 1, 10-11 (1989) (indictment suciently alleged the
deadliness of drink bottles by stating that defendant assaulted the victim by inserting
them into her vagina), ad on other grounds, 326 N.C. 777 (1990).
State v. Hinson, 85 N.C. App. 558, 564 (1987) (Each of the indictments names the
two and one-half ton truck as the weapon used by defendant in committing the assault
and expressly alleges that it was a deadly weapon. Te indictments were, therefore,
sucient to support the verdicts of guilty of felonious assault with a deadly weapon and
the judgments based thereon.).
State v. Jacobs, 61 N.C. App. 610, 611 (1983) (since defendants sts could have been a
deadly weapon in the circumstances of this assault, the indictment was sucient; the
indictment specically stated that defendant used his sts as a deadly weapon and gave
facts demonstrating their deadly character).
Even when the indictment is valid on its face, challenges are sometimes made regarding a fatal
variance between the deadly weapon charged in the indictment and the proof at trial. Te cases
summarized below are illustrative.
State v. Skinner, 162 N.C. App. 434 (2004) (fatal variance existed between the indict-
ment and the evidence at trial; indictment alleged that defendant assaulted the victim
with his hands, a deadly weapon; evidence at trial indicated that the deadly weapon
used was a hammer or some sort of iron pipe; although indictment was sucient on its
face, variance was fatal).
State v. Shubert, 102 N.C. App. 419, 428 (1991) (no fatal variance; rejecting defendants
argument that while the indictment charged that defendant unlawfully, willfully, and
feloniously did assault Lizzie Price with his feet, a deadly weapon, with the intent to
kill and inicting serious injury, the evidence proved only the use of defendants sts;
the evidence that the victim was hit with something harder than a st and that human
blood was found on defendants shoes is sucient to justify an inference that the assault
was in part committed with defendants feet).
State v. Everhardt, 96 N.C. App. 1, 10-11 (1989) (no fatal variance between indictment
alleging that defendant assaulted the victim with a table leg, a deadly weapon and the
evidence, showing that the deadly weapon was the leg of a footstool; Tis is more a
dierence in semantics than in substance. Te defendant had fair warning that the State
sought to prosecute him for assaulting his wife with the leg of a piece of furniture, and
the State explicitly called it a deadly weapon . . . .), ad on other grounds, 326 N.C. 777
(1990).
State v. Jones, 23 N.C. App. 686, 687-88 (1974) (no fatal variance in indictment charging
assault with a rearm on a law enforcement ocer; indictment charged that defendant
used a 16 gauge automatic rie and evidence showed that defendant red a 16 gauge
automatic shotgun; the indictment[] charged assault with a rearm and clearly an
automatic shotgun comes within that classication).
State v. Muskelly, 6 N.C. App. 174, 176-77 (1969) (no fatal variance between indictment
alleging that defendant assaulted the victim with a certain deadly weapon, to wit:
a pistol . . . by shooting him with said pistol and proof which showed that although
shots were red by the defendants, the victim was not struck by a bullet but was in fact
beaten about the head with a pistol; the words by shooting him with said pistol were
superuous and should be disregarded).
4. Assault on a Government Ocial
Unlike indictments alleging resisting, delaying, and obstructing an ocer, indictments alleging
assault on a law enforcement ocer need not allege the specic duty that the ocer was perform-
ing at the time of the assault.
113
Nor are they required to allege that the defendant knew the victim
was a law enforcement ocer, provided they allege the act was done willfully, a term that implies
that knowledge.
114
5. Habitual Misdemeanor Assault
An indictment for habitual misdemeanor assault must conform to G.S. 15A-928. For additional
detail, see Robert Farb, Habitual Oender Laws at p. 13 (Faculty Paper, July 1, 2008) (available on-
line at www.sog.unc.edu/programs/crimlaw/habitual.pdf).
6. Malicious Conduct by Prisoner
In State v. Artis,
115
the court of appeals held than an indictment charging malicious conduct by a
prisoner under G.S. 14-258.4 was not defective even though it failed to allege that the defendant
was in custody when the conduct occurred. Te court held that the defendant had adequate notice
of the charges because he was an inmate in the county detention center, was incarcerated when he
received notice of the charges, and raised no objection that he was unaware of the facts giving rise
to the charges.
G. Stalking
State v. Stephens, __ N.C. App. __, 655 S.E.2d 435 (2008) (the trial court did not err
by allowing amendment of a stalking indictment; the amendment did not change the
language of the indictment, but rather separated out the allegation regarding the prior
conviction that elevated punishment to a felony, as required by G.S. 15A-928).
113. See State v. Bethea, 71 N.C. App. 125, 128-29 (1984) (indictment charging that defendant assaulted a
law enforcement ocer who was performing a duty of his oce was suciently specic to permit entry of
judgment for felony assault with a rearm on a law enforcement ocer; the indictment need not specify the
particular duty the ocer was performing; indictment only needs to allege that the law enforcement ocer
was performing a duty of his oce at the time the assault occurred).
114. See State v. Tomas, 153 N.C. App. 326, 335-336 (2002) (indictment charging assault with deadly
weapon on law enforcement ocer did not need to allege that the defendant knew or had reasonable
grounds to believe that the victim was a law enforcement ocer; indictment alleged that defendant will-
fully committed an assault on a law enforcement ocer, a term that indicates defendant knew that the
victim was a law enforcement ocer).
115. 174 N.C. App. 668, 671-73 (2005).
H. Resist, Delay, and Obstruct Ofcer
Indictments charging resisting, delaying, and obstructing an ocer must identify the ocer by
name, indicate the duty being discharged (e.g., searching the premises), and indicate generally
how the defendant resisted the ocer (e.g., using his body to block the ocers entry into the
premises).
116
I. Disorderly Conduct
In State v. Smith,
117
the court held that an indictment under G.S. 14-197 charging that the defen-
dant appeared in a public place in a rude and disorderly manner and did use profane and indecent
language in the presence of two or more persons was fatally defective. Te indictment failed to
allege that (1) the defendant used indecent or profane language on a public road or highway and (2)
such language was made in a loud and boisterous manner.
J. Child Abuse
In State v. Qualls,
118
the court held that there was no fatal variance when an indictment alleged
that the defendant inicted a subdural hematoma and the evidence showed that the injury was
an epidural hematoma. Te court explained that to indict a defendant for felonious child abuse
all that is required is an allegation that the defendant was the parent or guardian of the victim,
a child under the age of sixteen, and that the defendant intentionally inicted any serious injury
upon the child. Te court regarded the indictments reference to the victim suering a subdural
hematoma as surplusage.
K. Sexual Assault
G.S. 15-144.1 prescribes a short form indictment for rape and G.S. 15-144.2 prescribes a short
form indictment for sexual oense. Te statutes provide that the short form indictments may
116. See State v. Smith, 262 N.C. 472, 474 (1964) (pleading alleging that the defendant did obstruct, and
delay a police ocer in the performance of his duties by resisting arrest by striking, hitting and scratching
him was fatally defective; a warrant or indictment charging a violation of G.S. 14-223 must identify the
ocer by name and indicate the ocial duty he was discharging or attempting to discharge, and should
note the manner in which defendant resisted, delayed or obstructed); In Re J.F.M., 168 N.C. App. 144 (2005)
(juvenile petition properly alleged resist, delay and obstruct by charging that [T]he juvenile did unlawfully
and willfully resist, delay and obstruct (name ocer) S.L. Barr, by holding the oce of (name oce) Deputy
(describe conduct) delay and obstructing a public [ocer] in attempting to discharge a duty of his oce. At
the time, the ocer was discharging and attempting to discharge a duty of his/her (name duty) investigate
and detain [TB] whom was involved in an aray[.] Tis oense is in violation of G.S. 14-233.); State v.
Swift, 105 N.C. App. 550, 552-54 (1992) (indictment charging resisting an ocer was not fatally defec-
tive; such an indictment must identify the ocer by name, indicate the ocial duty being discharged and
indicate generally how defendant resisted the ocer); see also State v. White, 266 N.C. 361 (1966) (resisting
warrant charging that defendant did unlawfully and willfully resist, delay and obstruct a public ocer, to
wit: Reece Coble, a Policeman for the Town of Pittsboro, while he, the said Reece Coble, was attempting
to discharge and discharging a duty of his oce, to wit: by striking the said Reece Coble with his st was
insucient) (citing Smith, 262 N.C. 472, discussed above).
117. 262 N.C. 472, 473-74 (1964).
118. 130 N.C. App. 1, 6-8 (1998), ad, 350 N.C. 56 (1999).
be used for a number of listed oenses.
119
For example, G.S. 15-144.1(a) provides the short form
for forcible rape and states that any indictment containing the averments and allegations herein
named shall be good and sucient in law as an indictment for rape in the rst degree and will
support a verdict of guilty of rape in the rst degree, rape in the second degree, attempted rape
or assault on a female. However, when a rape indictment specically alleges all of the elements
of rst-degree rape under G.S. 14-27.2 and does not contain the specic allegations or averments
of G.S. 15-144.1, the court may instruct the jury only on that oense and any lesser included
oenses.
120

Te appellate courts repeatedly have upheld both the rape and sexual oense short form
indictments.
121
Tis does not mean, however, that all indictments conforming to the statutory
short form language are insulated from attack. In State v. Miller,
122
for example, the court of
appeals found the statutory sex oense indictments invalid. In that case, although the indict-
ments charged rst-degree statutory sex oense in the language of G.S. 15-144.2(b), they also cited
G.S. 14-27.7A (statutory rape or sexual oense of a person who is 13, 14, or 15 years old) instead
of G.S. 14-27.4 (rst-degree sexual oense). Moreover, the indictments included other allegations
that pertained to G.S. 14-27.7A. Based on the very narrow circumstances presented by [the] case,
the court held that the short form authorized by G.S. 15-144.2 was not sucient to cure the fatal
defects.
123

Te eect of the short form is that although the State must prove each and every element
of these oenses at trial, every element need not be alleged in a short form indictment.
124
A
defendant may, of course, request a bill of particulars to obtain additional information about
the charges.
125
Te trial courts decision to grant or deny that request is reviewed for abuse of
discretion.
126
An indictment that conforms to the statutory short form need not allege:
- at the victim was a female,
127

- e defendant's age,
128

119. See also State v. Daniels, 164 N.C. App. 558 (2004) (holding that the short form in G.S. 15-144.2(a)
may be used to charge statutory sex oense against a person who is 13, 14, or 15 years old).
120. See State v. Hedgepeth, 165 N.C. App. 321 (2004) (reasoning that the short form was not used and
that assault on a female is not a lesser included oense of rape).
121. See, e.g., State v. Wallace, 351 N.C. 481, 503-08 (2000) (upholding short form indictments for rst-
degree murder, rape, and sexual oense in the face of an argument that Jones v. United States, 526 U.S. 227
(1999), required a nding that they were unconstitutional); State v. Eer, 309 N.C. 742, 745-47 (1983) (short
form for sexual oense); State v. Lowe, 295 N.C. 596, 599-604 (1978) (short form for rape is constitutional).
122. 159 N.C. App. 608 (2003), ad, 358 N.C. 133 (2004).
123. See id. at 614; see supra p. 14 & nn. 44-45 (discussing other sexual assault cases involving amend-
ments to the statutory citation).
124. G.S. 15-144.1 (In indictments for rape, it is not necessary to allege every matter required to be
proved on the trial . . . .); G.S. 15-144.2 (same for sexual oenses); Lowe, 295 N.C. at 600.
125. See State v. Randolph, 312 N.C. 198, 210 (1984).
126. See id.
127. See State v. Bell, 311 N.C. 131, 137-38 (1984) (indictments for attempted rape were sucient even
though they did not allege that the victims were females).
128. See Lowe, 295 N.C. at 600 (short form for rape clearly authorizes an indictment which omits
[the] averment[] [regarding] the defendants age); State v. Wiggins, 161 N.C. App. 583 (2003) (defendants
age not an essential element in statutory rape case); State v. Hunter, 299 N.C. 29, 37-38 (1980) (same). Note
that under prior law both rst-degree statutory and rst-degree forcible rape required that the defendant be
more than 16 years of age. See G.S. 14-21(1) (repealed). Under current law, although rst-degree statutory
- e aggravating factor or factors that elevate a second-degree forcible oense to a frst-degree
forcible oense;
129
or
- e specifc sex act alleged to have occurred.
130
Te statutes require that short form indictments for both forcible rape and forcible sexual
oense include an averment that the assault occurred with force and arms.
131
However, failure
to include that averment is not a fatal defect.
132
Te short forms for both forcible rape and forc-
ible sexual oense also require an allegation that the oense occurred by force and against her
will.
133
However, in State v. Haywood,
134
the court of appeals concluded that the trial court did not
err by allowing the State to amend a rst-degree sex oense indictment by adding the words by
force. Te court reasoned that because the indictment already included the terms feloniously
and against the victims will, the charge was not substantially altered by the addition of the term
by force.
rape requires that the defendant be at least 12 years old, rst-degree forcible rape no longer has an element
pertaining to the defendants age. See G.S. 14-27.2.
129. See State v. Roberts, 310 N.C. 428, 432-34 (1984) (rejecting defendants argument that a short form
rape indictment was insucient to charge rst-degree rape because it did not allege that defendant dis-
played a dangerous weapon or that he caused serious injury or that he was aided and abetted by another,
essential elements of rst degree rape); Lowe, 295 N.C. at 600 (indictment is valid even if it does not indi-
cate whether oense was perpetrated by means of a deadly weapon or by inicting serious bodily injury).
130. See State v. Kennedy, 320 N.C. 20, 23-25 (1987) (indictments charging that defendant engaged in
a sex oense with the victim without specifying the specic sexual act were valid); State v. Edwards, 305
N.C. 378, 380 (1982) (sexual oense indictment drafted pursuant to G.S. 15-144.2(b) need not specify the
sexual act committed); State v. Burgess, 181 N.C. App. 27 (2007) (same); State v. Mueller, __ N.C. App. __,
647 S.E.2d 440 (2007) (indictments charging sexual crimes were sucient even though they did not contain
allegations regarding which specic sexual act was committed); State v. Youngs, 141 N.C. App. 220, 229-31
(2000) (no defect in indictments charging indecent liberties with a minor and statutory sex oense; an
indictment charging statutory sex oense need not contain a specic allegation regarding which sexual act
was committed; an indictment charging indecent liberties need not indicate exactly which of defendants
acts constitute the indecent liberty).
Although the State is not required to allege a specic sex act in the indictment, if it does so, it may be
bound by that allegation, at least with respect to prosecutions under G.S. 14-27.7. See State v. Loudner, 77
N.C. App. 453, 453-54 (1985) (indictment pursuant to G.S. 14-27.7 (intercourse and sexual oenses with
certain victims) charged that defendant engaged in a sexual act, to wit: performing oral sex and the
evidence showed only that defendant engaged in digital penetration of the victim; While the State was not
required to allege the specic nature of the sex act in the indictment, having chosen to do so, it is bound
by its allegations.) (citation omitted); State v. Bruce, 90 N.C. App. 547, 549-50 (1988) (fatal variance in
indictment pursuant to G.S. 14-27.7 indicating that charge was based on defendants having engaged in
vaginal intercourse with the victim and evidence at trial that showed attempted rape, attempted anal inter-
course and fellatio but not vaginal intercourse).
131. G.S. 15-144.1(a); G.S. 15-144.2(a).
132. See G.S. 15-155 (indictment not defective for omission of the words with force and arms); State v.
Cheek, 307 N.C. 552, 555 (1983); State v. Corbett, 307 N.C. 169, 173-75 (1982).
133. See G.S. 15-144.1(a); G.S. 15-144.2(a).
134. 144 N.C. App. 223, 228 (2001).
For rst-degree statutory rape and rst-degree statutory sex oense, the short forms state that
it is sucient to allege the victim as a child under 13.
135
Although that allegation need not follow
the statute verbatim,
136
it must clearly allege that the victim is under the age of thirteen.
137

For cases dealing with challenges to sexual assault indictments regarding the date of the
oense, see supra pp. 57.
L. Indecent Liberties
An indictment charging taking indecent liberties with a child under G.S. 14-202.1 need not
specify the act that constituted the indecent liberty.
138
M. Larceny, Embezzlement, and Related Crimes Interfering with Property Rights
Larceny and embezzlement indictments must allege a person or entity that has a property interest
in the property stolen. Tat property interest may be ownership, or it may be some special prop-
erty interest such as that of a bailee or custodian.
139
Although the name of a person or entity with
a property interest must be alleged in the indictment, the exact nature of the property interest,
e.g., owner or bailee, need not be alleged.
140
G.S. 15-148 sets out the rule for alleging joint owner-
ship of property. It provides that when the property belongs to or is in the possession of more than
one person, it is sucient to name one of such persons, and to state such property to belong to
the person so named, and another or others as the case may be.
As the cases summarized below illustrate,
141
failure to allege the name of one with a property
interest in the item will render the indictment defective. Similarly, a variance between the person
or entity alleged to hold a property interest and the evidence at trial is often fatal. And nally,
amendments as to this allegation generally are not permitted.
135. G.S. 15-144.1(b); G.S. 15-144.2(b).
136. See State v. Ollis, 318 N.C. 370, 374 (1986) (allegation that the victim is a female child eight (8) years
old suciently alleges that she is a child under 12 and satises the requirement of G.S. 15-144.1(b) as it
existed at the time; the additional allegation that the child was thus of the age of under thirteen (13) years
is surplusage [Note: at the time of the alleged oense in this case, rst-degree statutory rape applied to
victims under the age of 12; the statute now applies to victims under the age of 13]).
137. See id.; State v. Howard, 317 N.C. 140, 140-41 (1986) (defendant was tried and convicted under
G.S. 14-27.2 of rape of a child under the age of 13 years upon a bill of indictment which alleged that the
oense occurred when the old version of G.S. 14-27.2, applying to victims under the age of 12, was in eect;
although valid for oenses occurring after amendment of the statute, the indictment did not allege a crimi-
nal oense for a rape allegedly occurring before the amendment); State v. Trent, 320 N.C. 610, 612 (1987)
(same).
138. See State v. Youngs, 141 N.C. App. 220, 229-31 (2000) (citing State v Blackmon, 130 N.C. App. 692,
699 (1998), and State v. Singleton, 85 N.C. App. 123, 126 (1987)).
139. See, e.g., State v. Greene, 289 N.C. 578, 584 (1976).
140. See Greene, 289 N.C. at 586-86 (no fatal variance between indictment alleging that Welborn and
Greene had a property interest in the stolen property and evidence showing that Greene was the owner and
Welborn merely a bailee).
141. Many cases on point exist. Te cases annotated here are meant to be illustrative.
State v. Downing, 313 N.C. 164, 166-68 (1985) (fatal variance between felony larceny
indictment alleging that items were the personal property of a mother who owned the
building and evidence showing that items were owned by the daughters business, which
was located in the building).
State v. Eppley, 282 N.C. 249, 259-60 (1972) (fatal variance between larceny indictment
alleging that property belonged to James Ernest Carriker and evidence showing that
although the property was taken from Carrikers home, it was owned by his father).
State v. Cathey, 162 N.C. App. 350 (2004) (error to allow amendment regarding owner
of property).
State v. Craycraft, 152 N.C. App. 211, 213-14 (2002) (fatal variance between felony lar-
ceny indictment alleging that stolen property belonged to one Montague and evidence
showing that items belonged to defendants father; Montague, the landlord, did not have
a special possessory interest in the items, although he was maintaining them for his
former tenant).
State v. Salters, 137 N.C. App. 553, 555-57 (2000) (fatal variance between felony larceny
indictment charging defendant with stealing property owned by Frances Justice and
evidence showing that the property belonged to Kedrick (Justices eight-year old grand-
son); noting that had Justice been acting in loco parentis, there would be no doubt that
Justice would have been in lawful possession or had a special custodial interest in the
item).
State v. Johnson, 77 N.C. App. 583, 585 (1985) (indictment charging defendant with
breaking or entering a building occupied by Watauga Opportunities, Inc. and stealing
certain articles of personal property was fatally defective because it was silent as to
ownership, possession, or right to possess the stolen property; fatal variance existed
between second indictment charging defendant with breaking or entering a building
occupied by St. Elizabeth Catholic Church and stealing two letter openers, the personal
property of St. Elizabeth Catholic Church, and evidence that did not show that the
church either owned or had any special property interest in the letter openers but rather
established that the articles belonged to Father Connolly).
State v. Green, 305 N.C. 463, 474 (1982) (no fatal variance between larceny indictment
alleging that the stolen item was the personal property of Robert Allen in the custody
and possession of Margaret Osborne and the evidence; rejecting defendants argument
that the evidence conclusively showed that Terry Allen was the owner and concluding
that even if there was no evidence that Robert Allen owned the item, there would be no
fatal variance because the evidence showed it was in Osborns possession; the allegation
of ownership in the indictment therefore was mere surplusage).
State v. Liddell, 39 N.C. App. 373, 374-75 (1979) (no fatal variance between indictments
charging defendant with stealing the property of Lees-McRae College under the
custody of Steve Cummings and evidence showing that property belonged to Mackey
Vending Company and ARA Food Services; Lees-McRae College was in lawful posses-
sion of the items as well as having custody of them as a bailee).
When a variance between the indictments allegation regarding the owner or individual or
entity with a possessory interest and the evidence can be characterized as minor or as falling
within the rule of idem sonans,
142
it has been overlooked.
143
Larceny and embezzlement indictments must allege ownership of the property in a natural
person or a legal entity capable of owning property. When the property owner is a business, the
words corporation, incorporated, limited, and company, as well as abbreviations for those
terms such as Inc. and Ltd. suciently designate an entity capable of owning property.
144
Te
following cases illustrate this rule.
State v. Tornton, 251 N.C. 658, 660-62 (1960) (embezzlement indictment charging
embezzlement from Te Chuck Wagon was defective because it contained no allega-
tion that the victim was a legal entity capable of owning property; although the victims
name was given, there was no allegation that it was a corporation and the name itself
did not indicate that it was such an entity).
State v. Brown, __ N.C. App. __, 646 S.E.2d 590 (2007) (larceny indictment stating
that stolen items were the personal property of Smoker Friendly Store, Dunn, North
Carolina was defective because it did not state that the store was a legal entity capable
of owning property; rejecting the States argument that when count one and two were
read together the indictment alleged a legal entity capable of owning property; although
count two referenced a corporation as the owner, that language was not incorporated
into count one and each count of an indictment must be complete in itself).
State v. Price, 170 N.C. App. 672, 673 (2005) (indictment for larceny was defective when
it named the property owner as City of Asheville Transit and Parking Services, which
was not a natural person; the indictment did not allege that this entity was a legal entity
capable of owning property).
State v. Phillips, 162 N.C. App. 719 (2004) (larceny indictments were fatally defective
because they failed to give sucient indication of the legal ownership of the stolen
items; indictment alleged that items were the personal property of Parkers Marine;
Parkers Marine was not an individual and the indictment failed to allege that it was
a legal entity capable of ownership; defective count cannot be read together with
142. See supra pp. 1011.
143. State v. Weaver, 123 N.C. App. 276, 291 (1996) (no fatal variance between attempted larceny indict-
ment alleging that the stolen items were the personal property of Finch-Wood Chevrolet-Geo Inc. and
evidence; evidence showed that Finch-Wood Chevrolet had custody and control of the car but did not show
that entity was incorporated or that it also was known as Finch-Wood Chevrolet-Geo); State v. Cameron, 73
N.C. App 89, 92 (1985) (no fatal variance between indictment alleging that stolen items belonged to Mrs.
Narest Phillips and evidence showing that the owner was Mrs. Ernest Phillips; names are suciently
similar to fall within the doctrine of idem sonans, and the variance was immaterial); State v. McCall, 12
N.C. App. 85, 87-88 (1971) (no fatal variance between indictment and proof; indictment charged the larceny
of money from Piggly Wiggly Store #7, and witnesses referred to the store as Piggly Wiggly in Wilson,
Piggly Wiggly Store, Piggly Wiggly, and Piggly Wiggly Wilson, Inc.); see also State v. Smith, 43 N.C.
App. 376, 378 (1979) (no fatal variance between warrant charging defendant with stealing the property of
K-Mart Stores, Inc., Lenoir, N.C. and testimony at trial that the name of the store was K-Mart, Inc.,
K-Mart Corporation, or K-Mart Corporation).
144. State v. Cave, 174 N.C. App. 580, 583 (2005).
non-defective count when defective count does not incorporate by reference required
language).
State v. Norman, 149 N.C. App. 588, 593 (2002) (felony larceny indictment alleging that
defendant took the property of Quail Run Homes Ross Dotson, Agent was fatally
defective because it lacked any indication of the legal ownership status of the victim
(such as identifying the victim as a natural person or a corporation); Any crime that
occurs when a defendant oends the ownership rights of another, such as conversion,
larceny, or embezzlement, requires proof that someone other than a defendant owned
the relevant property. Because the State is required to prove ownership, a proper indict-
ment must identify as victim a legal entity capable of owning property.)
State v. Linney, 138 N.C. App. 169, 172-73 (2000) (fatal variance existed in embezzle-
ment indictment alleging that rental proceeds belonged to an estate when in fact they
belonged to the decedents son; also, an estate is not a legal entity capable of holding
property).
State v. Woody, 132 N.C. App. 788, 790 (1999) (indictment for conversion by bailee alleg-
ing that the converted property belonged to P&R unlimited was defective because it
lacked any indication of the legal ownership status of the victim; while the abbreviation
ltd or the word limited is a proper corporate identier, unlimited is not).
State v. Hughes, 118 N.C. App. 573, 575-76 (1995) (embezzlement indictments alleged
that gasoline belonged to Mike Frost, President of Petroleum World, Incorporated, a
North Carolina Corporation; evidence showed that gasoline was actually owned by
Petroleum World, Incorporated, a corporation; trial judge improperly allowed the State
to amend the indictments to delete the words Mike Frost, President; because an indict-
ment for embezzlement must allege ownership of the property in a person, corporation
or other legal entity able to own property, the amendment was a substantial alteration).
State v. Strange, 58 N.C. App. 756, 757-58 (1982) (arresting judgment ex mero moto
where the defendant was charged and found guilty of the larceny of a barbeque cooker
the personal property of Granville County Law Enforcement Association because
indictment failed to charge the defendant with the larceny of the cooker from a legal
entity capable of owning property).
State v. Perkins, 57 N.C. App. 516, 518 (1982) (larceny indictment was defective because
it failed to allege that Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch was a
corporation or other legal entity capable of owning property and name did not indicate
that it was a corporation or natural person).
State v. Cave, 174 N.C. App. 580, 582 (2005) (larceny indictment was not defective; the
indictment named the owner as N.C. FYE, Inc.; the indictment was sucient because
the abbreviation Inc. imports the entitys ability to own property).
State v. Day, 45 N.C. App. 316, 317-18 (1980) (no fatal variance between the indictment
alleging that items were the property of J. Riggings, Inc., a corporation and evidence;
witnesses testied that items were owned by J. Riggings, a mans retailing establish-
ment, J. Riggins Store, and J. Riggings but no one testied that J. Riggings was a
corporation).
One case that appears to be an exception to the general rule that the owner must be identied
as one capable of legal ownership is State v. Wooten.
145
Tat case upheld a shoplifting indictment
that named the victim simply as Kings Dept. Store. Noting that indictments for larceny and
embezzlement must allege ownership in either a natural person or legal entity capable of owning
property, the Wooten court distinguished shoplifting because it only can be committed against a
store. At least one case has declined to extend Wooten beyond the shoplifting context.
146
A larceny indictment must describe the property taken. Te cases annotated below explore
the level of detail required in the description. When the larceny is of any money, United States
treasury note, or bank note, G.S. 15-149 provides that it is sucient to describe the item simply
as money, without specifying any particular coin [or note]. G.S. 15-150 provides a similar rule for
embezzlement of money.
State v. Ingram, 271 N.C. 538, 541-44 (1967) (larceny indictment that described stolen
property as merchandise, chattels, money, valuable securities and other personal prop-
erty was insucient).
State v. Nugent, 243 N.C. 100, 102-03 (1955) (meat was an insucient description in
larceny and receiving indictment of the goods stolen).
State v. Simmons, 57 N.C. App. 548, 551-52 (1982) (fatal variance between larceny
indictment and the proof at trial as to what item or items were taken; property was
alleged as eight (8) Imperial, heavy duty freezers, Serial Numbers: 02105, 02119, 01075,
01951, 02024, 02113, 02138, 02079, the personal property of Southern Food Service,
Inc., in the custody and possession of Patterson Storage Warehouse Company, Inc., a
corporation; however, the property seized was a 21 cubic foot freezer, serial number
W210TSSC-030-138).
State v. Hartley, 39 N.C. App. 70, 71-72 (1978) (larceny indictments alleging property
taken as a quantity of used automobile tires, the personal property of Jerry Phillips
and Tom Phillips, and d/b/a the Avery County Recapping Service, Newland, N.C. was
sucient; indictments named property (tires), described them as to type (automobile),
condition (used), ownership, and location).
State v. Monk, 36 N.C. App. 337, 340-41 (1978) (indictment alleging assorted items of
clothing, having a value of $504.99 the property of Paynes, Inc. was sucient).
State v. Boomer, 33 N.C. App. 324, 330 (1977) (When describing an animal, it is suf-
cient to refer to it by the name commonly applied to animals of its kind without
further description. A specic description of the animal, such as its color, age, weight,
sex, markings or brand, is not necessary. Te general term hogs in the indictment suf-
ciently describes the animals taken so as to identify them with reasonable certainty.)
(citation omitted).
State v. Coleman, 24 N.C. App. 530, 532 (1975) (no fatal variance between indictment
describing property as a 1970 Plymouth with a specic serial number, owned by
145. 18 N.C. App. 652 (1973).
146. See State v. Woody, 132 N.C. App. 788, 791 (1999).
George Edison Biggs and evidence which showed a taking of a 1970 Plymouth owned by
George Edison Biggs but was silent as to the serial number).
State v. Foster, 10 N.C. App. 141, 142-43 (1970) (larceny indictment alleging automobile
parts of the value of $300.00 . . . of one Furches Motor Company was sucient).
State v. Mobley, 9 N.C. App. 717, 718 (1970) (indictment alleging an undetermined
amount of beer, food and money of the value of $25.00 . . . of the said Evening Star
Grill was sucient).
State v. Chandler
147
held that when the charge is attempted larceny, it is not necessary to specify
the particular goods and chattels the defendant intended to steal. Te court reasoned that the
oense of attempted larceny is complete when there is a general intent to steal and an act in fur-
therance thereof. Tus, it concluded, an allegation as to the specic articles intended to be taken
is not essential to the crime.
148

A larceny indictment need not describe the manner of the taking, even if the larceny was by
trick.
149
Nor is it necessary for a larceny indictment to expressly allege that the defendant intended
to convert the property to his or her own use, that the taking was without consent, or that the
defendant had an intent to permanently deprive the owner of the property of its use.
150
In order to properly charge felony larceny, the indictment must specically allege one of the
factors that elevate a misdemeanor larceny to a felony.
151
Tus, if the factor elevating the oense to
a felony is that the value of the items taken exceeds $1,000, this fact must be alleged in the indict-
ment. However, a variance as to this gure will not be fatal, provided that the evidence establishes
that the value of the items is $1,000 or more.
152
An indictment alleging that the larceny was
committed pursuant to a violation of G.S. 14-51 is sucient to charge felony larceny committed
pursuant to a burglary.
153
Also, a defendant properly may be convicted of felony larceny pursuant
147. 342 N.C. 742, 753 (1996).
148. See id.
149. See State v. Barbour, 153 N.C. App. 500, 503 (2002) (It is not necessary for the State to allege the
manner in which the stolen property was taken and carried away, and the words by trick need not be
found in an indictment charging larceny.); State v. Harris, 35 N.C. App. 401, 402 (1978).
150. See State v. Osborne, 149 N.C. App. 235, 244-45 (indictment properly charged larceny even though
it did not allege that item was taken without consent or that defendant intended to permanently deprive
the owner; charge that defendant unlawfully, willfully and feloniously did [s]teal, take, and carry away
was sucient), ad, 356 N.C. 424 (2002); State v. Miller, 42 N.C. App. 342, 346 (1979) (rejecting defendants
argument that the indictment was fatally defective because it failed to state a felonious intent to appropriate
the goods taken to the defendants own use; allegation that defendant unlawfully and willfully did feloni-
ously steal, take, and carry away the item was sucient); see also State v. Wesson, 16 N.C. App. 683, 685-88
(1972) (warrants use of the term steal in charging larceny suciently charged the required felonious
intent).
151. See G.S. 14-72 (delineating elements that support a felony charge); State v. Wilson, 315 N.C. 157,
164-65 (1985) (agreeing with defendants contention that the indictment failed to allege felonious larceny
because it did not specically state that the larceny was pursuant to or incidental to a breaking or entering
and the amount of money alleged to have been stolen was below the statutory amount necessary to consti-
tute a felony).
152. See State v. McCall, 12 N.C. App. 85, 88 (1971) (indictment alleged larceny of $1948 and evidence
showed larceny of $1748).
153. See State v. Mandina, 91 N.C. App. 686, 690-91 (1988).
to a breaking and entering when the indictment charged felony larceny pursuant to a burglary,
154

because breaking or entering is a lesser included oense of burglary.
155
N. Receiving or Possession of Stolen Property
Unlike larceny, indictments charging receiving or possession of stolen property need not allege
ownership of the property.
156
Te explanation for this distinction is that the name of the person
from whom the goods were stolen is not an essential element of these oenses.
157
O. Injury to Personal Property
An indictment for injury to personal property must allege the owner or person in lawful posses-
sion of the injured property.
158
If the entity named in the indictment is not a natural person, the
indictment must allege that the victim was a legal entity capable of owning property.
159
Tese rules
follow those for larceny, discussed above.
160

P. False Pretenses and Forgery
1. False Pretenses
One issue in false pretenses cases is how the false representation element should be alleged in the
indictment. In State v. Perkins,
161
the court of appeals held that an allegation that the defendant
used a credit and check card issued in the name of another person, wrongfully obtained and with-
out authorization, suciently apprised the defendant that she was accused of falsely representing
herself as an authorized user of the cards.
162
In State v. Parker,
163
the court of appeals upheld the
154. See State v. McCoy, 79 N.C. App. 273, 277 (1986); State v. Eldgridge, 83 N.C. App. 312, 316 (1986).
155. See McCoy, 79 N.C. App. at 277.
156. See State v. Jones, 151 N.C. App. 317, 327 (2002) (variance between ownership of property alleged
in indictment and evidence of ownership introduced at trial is not fatal to charge of felonious possession
of stolen goods); State v. Medlin, 86 N.C. App. 114, 123-24 (1987) (In cases of receiving stolen goods, it
has never been necessary to allege the names of persons from whom the goods were stolen, nor has a vari-
ance between an allegation of ownership in the receiving indictment and proof of ownership been held to
be fatal. We now hold that the name of the person from whom the goods were stolen is not an essential
element of an indictment alleging possession of stolen goods, nor is a variance between the indictments
allegations of ownership of property and the proof of ownership fatal.) (citations omitted).
157. See Jones, 151 N.C. App at 327.
158. See State v. Price, 170 N.C. App. 672, 673-74 (2005).
159. See id. at 674 (indictment for injury to personal property was defective when it named the property
owner as City of Asheville Transit and Parking Services, which was not a natural person; the indictment
did not allege that it was a legal entity capable of owning property).
160. See supra pp. 3436.
161. 181 N.C. App. 209, 215 (2007).
162. Id. (the indictment alleged that the defendant unlawfully, willfully and feloniously did knowingly
and designedly, with the intent to cheat and defraud, attempted to obtain BEER AND CIGARETTES from
FOOD LION by means of a false pretense which was calculated to deceive. Te false pretense consisted
of the following: THIS PROPERTY WAS OBTAINED BY MEANS OF USING THE CREDIT CARD AND
CKECK [sic] CARD OF MIRIELLE CLOUGH WHEN IN FACT THE DEFENDANT WRONGFULLY
OBTAINED THE CARDS AND WAS NEVER GIVEN PERMISSION TO USE THEM).
163. 146 N.C. App. 715 (2001).
trial courts decision to allow the State to amend a false pretenses indictment by changing the
items that the defendant represented as his own from two (2) cameras and photography equip-
ment to a Magnavox VCR.
164
Te court held that the amendment was not a substantial altera-
tion because the description of the item or items that the defendant falsely represented as his own
was irrelevant to proving the essential elements of the crime charged. Tose essential elements
were simply that the defendant falsely represented a subsisting fact, which was calculated and
intended to deceive, which did in fact deceive, and by which defendant obtained something of
value from another.
In false pretenses cases, the thing obtained must be described with reasonable certainty.
165
Tis
standard was satised in State v. Walston,
166
where the court held that there was no fatal vari-
ance between a false pretenses indictment alleging that the defendant obtained $10,000 in U.S.
currency and the evidence that showed that the defendant deposited a $10,000 check into a bank
account. Te court reasoned that whether defendant received $10,000.00 in cash or deposited
$10,000.00 in a bank account, he obtained something of monetary value which is the crux of the
oense.
167
Although early cases indicate that a false pretenses indictment should describe money
obtained by giving the amount in dollars and cents,
168
more modern cases have been exible on
this rule. Tus, an indictment alleging that the defendant falsely represented to a store clerk that
he had purchased a watch band in order to obtain United States currency was held to be suf-
cient, even though a dollar amount was not stated.
169
Te court distinguished the earlier cases
noting that in the case before it, the indictment alleged the item the watch band which the
defendant used to obtain the money.
170
G.S. 15-151 provides that in any case in which an intent to defraud is required for forgery or any
other oense, it is sucient to allege an intent to defraud, without naming the person or entity
intended to be defrauded. Tat provision states that at trial, it is sucient and not a variance if
there is an intent to defraud a government, corporate body, public ocer in his or her ocial
capacity, or any particular person. Without citing this provision, at least one case has held that a
false pretenses indictment need not specify the alleged victim.
171

2. Identity Teft
Identity theft
172
is a relatively new crime and few cases have dealt with indictment issues regard-
ing this oense. One case that has is State v. Dammons,
173
in which the indictment alleged that
the defendant had fraudulently represented himself as William Artis Smith for the purpose of
making nancial or credit transactions and for the purpose of avoiding legal consequences in the
name of Michael Anthony Dammons. Te States evidence at trial indicated that the defendant
assumed Smiths identity without consent in order to avoid legal consequences in the form of
164. See id. at 719.
165. See State v. Walston, 140 N.C. App. 327, 334 (2000) (quotation omitted).
166. 140 N.C. App. 327 (2000).
167. Id. at 334-36
168. See State v. Smith, 219 N.C. 400, 401 (1941); State v. Reese, 83 N.C. 638 (1880).
169. State v. Ledwell, 171 N.C. App. 314, 317-18 (2005).
170. See id. at 318.
171. State v. McBride, __ N.C. App. __, 653 S.E.2d 218 (2007) (the court concluded that the statute pro-
scribing the oense, G.S. 14-100, does not require that the State prove an intent to defraud any particular
person).
172. G.S. 14-113.20.
173. 159 N.C. App. 284 (2003).
felony charges. Te appellate court rejected the defendants argument of fatal variance, conclud-
ing that the charging language about the nancial transaction was unnecessary and was properly
regarded as surplusage.
174

3. Forgery
In North Carolina, there are common law and statutory oenses for forgery.
175
For oenses
charged under G.S. 14-119 (forgery of notes, checks, and other securities; counterfeiting instru-
ments), the indictment need not state the manner in which the instrument was forged.
176

Q. Perjury and Related Offenses
G.S. 15-145 provides the form for a bill of perjury. G.S. 15-146 does the same for a bill of suborna-
tion of perjury. G.S. 14-217(b) species the contents of an indictment for bribery of ocials.
R. Habitual and Violent Habitual Felon
In North Carolina, being a habitual felon or a violent habitual felon is not a crime but a status,
the attaining of which subjects a defendant thereafter convicted of a crime to an increased pun-
ishment.
177
Te status itself, standing alone, will not support a criminal conviction.
178
Put another
way, an indictment for habitual or violent habitual felon must be attached to an indictment
charging a substantive oense.
179
Focusing on the distinction between a status and a crime, the
174. Id. at 293.
175. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime pp.
334-39 (6th ed. 2007).
176. State v. King, 178 N.C. App. 122 (2006) (indictment alleged that on or about the 19th day of March,
2004, in Wayne County Louretha Mae King unlawfully, willfully, feloniously and with the intent to injure
and defraud, did forge, falsely make, and counterfeit a Wachovia withdrawal form, which was apparently
capable of eecting a fraud, and which is as appears on the copy attached hereto as Exhibit A and which is
hereby incorporated by reference in this indictment as if the same were fully set forth; rejecting the defen-
dants argument that the indictment was defective because it failed to allege how the defendant committed
the forgery; concluding that the indictment clearly set forth all of the elements of the oense and that
furthermore a copy of the withdrawal slip was attached to the indictment as an exhibit showing the date
and time of day, amount of money withdrawn, account number, and particular bank branch from which the
funds were withdrawn).
177. See, e.g., State v. Allen, 292 N.C. 431, 433-35 (1977) (Properly construed the [habitual felon] act
clearly contemplates that when one who has already attained the status of an habitual felon is indicted
for the commission of another felony, that person may then be also indicted in a separate bill as being an
habitual felon. It is likewise clear that the proceeding by which the state seeks to establish that defendant is
an habitual felon is necessarily ancillary to a pending prosecution for the principal, or substantive felony.
Te act does not authorize a proceeding independent from the prosecution of some substantive felony for
the sole purpose of establishing a defendants status as an habitual felon.).
178. See, e.g., id. at 435.
179. Compare id. at 436 (holding that habitual felon indictment was invalid because there was no pend-
ing felony prosecution to which the habitual felon proceeding could attach) and State v. Davis, 123 N.C.
App. 240, 243-44 (1996) (trial court erred by sentencing defendant as an habitual felon after arresting
judgment in all the underlying felonies for which defendant was convicted) with State v. Oakes, 113 N.C.
App. 332, 339 (1994) (until judgment was entered upon defendants conviction of the substantive felony,
there remained a pending, uncompleted felony prosecution to which a new habitual felon indictment could
North Carolina Court of Appeals has stated that because being a habitual felon is not a substan-
tive oense, the requirement in G.S. 15A-924(a)(5) that each element of the crime be pleaded does
not apply.
180
It went on to indicate that as a status, the only pleading requirement is that defen-
dant be given notice that he is being prosecuted for some substantive felony as a recidivist.
181
Te relevant statutes provide that the indictment charging habitual felon or violent habitual
felon status shall be separate from the indictment charging the substantive felony.
182
Although it
has not ruled on the issue, in State v. Patton, the North Carolina Supreme Court has indicated
that this language requires separate indictments.
183
In State v. Young,
184
the North Carolina Court
of Appeals upheld an indictment that charged the underlying felony and habitual felon in separate
counts of the same indictment. Young held that G.S. 14-7.3 does not require that a habitual felon
indictment be contained in a separate bill of indictment; rather it held that the statute requires
merely that the indictment charging habitual felon status be distinct, or set apart, from the
charge of the underlying felony. However, Young was decided before Patton and it is not clear that
its rationale survives that later case.
Te indictment for the substantive felony need not charge or refer to the habitual felon status.
185
Nor must the habitual felon indictment allege the substantive felony.
186
If the substantive felony
is alleged in the habitual felon indictment and an error is made with regard to that allegation, the
allegation will be treated as surplusage and ignored.
187
Finally a separate habitual felon indictment
is not required for each substantive felony indictment.
188

A number of issues have arisen regarding the timing of habitual and violent habitual felon
indictments. Te basic rule is that an indictment for habitual felon or violent habitual felon must
be obtained before the defendant enters a plea at trial to the substantive oense.
189
Te reason
for this rule is so that defendant has notice that he [or she] will be charged as a recidivist before
pleading to the substantive felony, thereby eliminating the possibility that he [or she] will enter a
attach) and State v. Mewborn, 131 N.C. App. 495, 501 (1998) (after the original violent habitual felon indict-
ment was quashed, prayer for judgment continued was entered on the substantive felony, a new indictment
was issued, and defendant stood trial under that indictment as a violent habitual felon; because defendant
had not yet been sentenced for the substantive felony and because the original indictment placed him on
notice that he was being tried as a violent habitual felon, the subsequent indictment attached to the ongoing
felony proceeding and defendant was properly tried as a violent habitual felon).
180. See State v. Roberts, 135 N.C. App. 690, 698 (1999).
181. Id. at 698 (quotation omitted and emphasis deleted).
182. See G.S. 14-7.3 (habitual felon); 14-7.9 (violent habitual felon).
183. See State v. Patton, 342 N.C. 633, 635 (1996); State v. Allen, 292 N.C. 431, 433 (1977).
184. 120 N.C. App. 456, 459-61 (1995).
185. See State v. Todd, 313 N.C. 110, 120 (1985); State v. Peoples, 167 N.C. App. 63, 71 (2004); State v.
Mason, 126 N.C. App. 318, 322 (1997); State v. Hodge, 112 N.C. App, 462, 466-67 (1993); State v. Sanders, 95
N.C. App. 494, 504 (1989); State v. Keyes, 56 N.C. App. 75, 78 (1982).
186. See State v. Cheek, 339 N.C. 725, 727 (1995); State v. Smith, 160 N.C. App. 107, 124 (2003); State v.
Bowens, 140 N.C. App. 217, 224 (2000); State v. Roberts, 135 N.C. App. 690, 698 (1999); Mason, 126 N.C.
App. at 322.
187. See, e.g., Bowens, 140 N.C. App. at 224-25.
188. See State v. Patton, 342 N.C. 633, 635 (1996) (rejecting the notion that a one-to-one correspondence
was required); State v. Taylor, 156 N.C. App. 172, 174 (2003).
189. See State v. Allen, 292 N.C. 431, 436 (1977); State v. Little, 126 N.C. App. 262, 269 (1997).
Te court of appeals has rejected the argument that the cut o is when a defendant enters a plea at an
arraignment. State v. Cogdell, 165 N.C. App. 368 (2004). Te court concluded that the critical event . . . is
the plea entered before the actual trial. Id. at 373.
guilty plea without a full understanding of the possible consequences of conviction.
190
A habitual
or violent habitual indictment may be obtained before an indictment on the substantive charge is
obtained, provided there is compliance with the statutes notice and procedural requirements.
191

Once a guilty plea has been adjudicated on a habitual felon indictment or information, that par-
ticular pleading has been used up and cannot support sentencing the defendant as a habitual
felon on another felony; this rule applies even if the sentencing on the original pleading has been
continued.
192

Te most common challenges to habitual felon and violent habitual felon indictments are to the
prior felonies alleged. G.S. 14-7.3 (charge of habitual felon), provides that indictments must set
forth the date that prior felony oenses were committed, the name of the state or other sovereign
against whom said felony oenses were committed, the dates that pleas of guilty were entered to
or convictions returned in said felony oenses, and the identity of the court wherein said pleas or
convictions took place. G.S. 14-7.9 (charge of violent habitual felon) contains similar although not
identical language. Te prior convictions are treated as elements; thus, it is error to allow the State
to amend an indictment to replace an alleged prior conviction.
193
Similarly, an indictment will be
deemed defective if one of the alleged priors is a misdemeanor, not a felony, even if defense counsel
stipulates that the prior convictions were felonies.
194
By contrast, the courts are lenient with regard
to the statutory requirement that the indictment identify the state or other sovereign against whom
the prior felonies were committed.
195
190. State v. Oakes, 113 N.C. App. 332, 338 (1994). Te court of appeals has deviated from the basic timing
rule in two cases. However, in both cases, (1) the habitual felon indictment was obtained before the defendant
entered a plea at trial and was later replaced with either a new or superseding indictment; thus there was
some notice as to the charge; and (2) both cases described the defects in the initial indictment as technical;
thus, both probably could have been corrected by amendment. See Oakes, 113 N.C. App. 332; Mewborn, 131
N.C. App. 495.
191. See State v. Blakney, 156 N.C. App. 671, 675 (2003); see also State v. Murray, 154 N.C. App. 631, 638
(2002).
192. State v. Bradley, 175 N.C. App. 234 (2005) (when the defendant pleaded guilty to two crimes and hav-
ing attained habitual felon status as to each but sentencing was continued, the original habitual felon infor-
mations could not be used to support habitual felon sentencing for a subsequent felony charge).
193. State v. Little, 126 N.C. App. 262, 269-70 (1997) (the State should not have been allowed to obtain
a superseding indictment which changed one of the three felony convictions listed as priors; the court
concluded that a change in the prior convictions was substantive and altered an allegation pertaining to an
element of the oense).
194. State v. Moncree, __ N.C. App. __, 655 S.E.2d 464 (2008) (habitual felon indictment was defective
where one of the prior crimes was classied as a misdemeanor in the state where it was committed; defense
counsels stipulations that all of the priors were felonies did not foreclose relief on appeal).
195. State v. Montford, 137 N.C. App. 495, 500-01 (2000) (trial court did not err in allowing the State to
amend the habitual felon indictment; original indictment listed three previous felonies, but did not state
that they had been committed against the State of North Carolina, instead listing that they had occurred
in Carteret County; State amended the indictment by inserting in North Carolina after each listed felony;
we need not even address the amendment issue, as we conclude that the original indictment itself was not
awed; although the statute requires the indictment to allege the name of the state or sovereign, we have not
required rigid adherence to this rule; the name of the state need not be expressly stated if the indictment
suciently indicates the state against whom the felonies were committed; the original indictment su-
ciently indicated the state against whom the prior felonies were committed because State of North Carolina
explicitly appears at the top of the indictment, followed by Carteret County, thus, Carteret County is
clearly linked with the state name); State v. Mason, 126 N.C. App. 318, 323 (1997) (indictment stated the
prior assault with a deadly weapon inicting serious injury occurred in Wake County, North Carolina and
Cases dealing with date issues regarding prior convictions in these indictments are summarized
above, see supra pp. 89. Te summaries below explore other challenges that have been asserted
against the prior felony allegations in habitual felon and violent habitual felon indictments.
State v. McIlwaine, 169 N.C. App. 397, 399-499 (2005) (habitual felon indictment alleged
that the defendant had been previously convicted of three felonies, including the felony
of possession with intent to manufacture, sell or deliver [S]chedule I controlled substance,
in violation of N.C.G.S. 90-95; the indictment was sucient to charge habitual felon even
though it did not allege the specic name of the controlled substance).
State v. Briggs, 137 N.C. App. 125, 130-31 (2000) (habitual felon indictment listing convic-
tion for felony of breaking and entering buildings in violation of N.C.G.S. 14-54 and
containing the date the felony was committed, the court in which defendant was con-
victed, the number assigned to the case, and the date of conviction was sucient).
State v. Hicks, 125 N.C. App. 158, 160 (1997) (no error by allowing State to amend habitual
felon indictment; original indictment alleged that all of the previous felony convictions
were committed after the defendant reached the age of eighteen; the State amended to
allege that all but one of the previous felony convictions were committed after the defen-
dant reached the age of eighteen; the three underlying felonies remained the same).
S. Drug Offenses
1. Sale or Delivery
Indictments charging sale or delivery of a controlled substance in violation of G.S. 90-95(a)(1) must
allege a controlled substance that is included in the schedules of controlled substances.
196
Such
indictments also must allege the name of the person to whom the sale or delivery was made, when
that persons name is known, or allege that the persons name was unknown.
197
One exception
that judgment was entered in Wake County Superior Court and listed voluntary manslaughter as occurring
in Wake County and that judgment was entered in Wake County Superior Court, but did not list a state;
indictment was sucient because the description of the assault conviction indicates Wake County is within
North Carolina, and the indictment states both judgments were entered in Wake County Superior Court, we
believe this, along with the dates of the oenses and convictions, is sucient to give defendant the required
notice); State v. Young, 120 N.C. App. 456, 462 (1995) (rejecting defendants argument that habitual felon
indictment inadequately alleged the name of the state or other sovereign against whom the prior felonies were
committed); State v. Hodge, 112 N.C. App. 462, 467 (1993) (upholding indictment that alleged that the felony
of common law robbery was committed in Wake County, North Carolina, and that the other priors were
committed in Wake County, descriptions which were in the same sentence; the use of Wake County to
describe the sovereignty against which the felonies were committed was clearly a reference to Wake County,
North Carolina); State v. Williams, 99 N.C. App. 333, 334-35 (1990) (habitual felon indictment setting forth
each of the prior felonies of which defendant was charged and convicted as being in violation of an enumer-
ated North Carolina General Statutes contained a sucient statement of the state or sovereign against
whom the felonies were committed).
196. State v. Ahmadi-Turshizi, 175 N.C. App. 783, 785-86 (2006); see infra pp. 47-48 (discussing allegations
regarding drug name).
197. See State v. Bennett, 280 N.C. 167, 168-69 (1971) (an indictment for sale of a controlled substance must
state the name of the person to whom the sale was made or that his or her name was unknown) (decided
under prior law); State v. Calvino, 179 N.C. App. 219, 221-222 (2006) (the indictment alleged that defendant
sold cocaine to a condential source of information and it was undisputed that the State knew the name
to this rule has been recognized by the court of appeals in cases involving middlemen. State v.
Cotton
198
is illustrative. In Cotton, the sale and delivery indictment charged that the defendant
sold the controlled substance to Todd, an undercover ocer. Te evidence at trial showed a direct
sale to Morrow, who was acting as a middleman for Todd. Defendant unsuccessfully moved to
dismiss on grounds of fatal variance. Te court of appeals noted that the State could overcome the
motion by producing substantial evidence that the defendant knew the cocaine was being sold to
a third party, and that the third party was named in the indictment. Turning to the facts before
it, the court noted that the evidence showed that Todd accompanied Morrow to the defendants
house and was allowed to stay in the house while Morrow and defendant had a discussion. Todd
was brought upstairs with them and waited in the bedroom when they went into the bathroom.
Morrow then came out and told Todd to give him the money because the defendant was paranoid,
went back into the bathroom, and came out with the cocaine. Te court concluded that there was
substantial evidence that the defendant knew that Morrow was acting as a middleman, and that
the cocaine was actually being sold to Todd, the person named in the indictment, and thus that
there was no fatal variance.
199
When there is insucient evidence showing that the defendant
knew that the intermediary was buying or taking delivery for the purchaser named in the indict-
ment, a fatal variance results.
200

If the charge is conspiracy to sell or deliver, the person with whom the defendant conspired to
sell and deliver need not be named.
201
2. Possession and Possession With Intent to Manufacture, Sell or Deliver
An indictment for possession of a controlled substance must identify the controlled substance
allegedly possessed.
202
However, time and place are not essential elements of the oense of
of the individual to whom defendant allegedly sold the cocaine in question; the indictment was fatally
defective); State v. Smith, 155 N.C. App. 500, 512-13 (2002) (fatal variance in indictment alleging that defen-
dant sold marijuana to Berger; facts were that Berger and Chadwell went to defendants bar to purchase
marijuana; Berger waited in the car while Chadwell went into the building and purchased marijuana on
their behalf; there was no substantial evidence that defendant knew he was selling marijuana to Berger);
State v. Wall, 96 N.C. App. 45, 49-50 (1989); (fatal variance between indictment charging sale and delivery
of cocaine to McPhatter, an undercover ocer, and evidence showing that McPhatter gave Riley money
to purchase cocaine, which she did; there was no substantial evidence that defendant knew Riley was act-
ing on McPhatters behalf); State v. Pulliman, 78 N.C. App. 129, 131-33 (1985) (no fatal variance between
indictment charging sale and delivery to Walker, an undercover ocer, and evidence; evidence showed
that although the sale was made to Cobb, defendant knew Cobb was buying the drugs for Walker); State
v. Sealey, 41 N.C. App. 175, 176 (1979) (fatal variance between indictment charging defendant with selling
dilaudid to Mills and evidence showing that defendant made the sale to Atkins); State v. Ingram, 20 N.C.
App. 464, 465-66 (1974) (fatal variance between indictment charging that defendant sold to Gooche and
evidence showing that the purchaser was Hairston); State v. Martindate, 15 N.C. App. 216, 217-18 (1972)
(indictment that did not name the person to whom a sale was allegedly made and did not allege that the
purchasers name was unknown was fatally defective); State v. Long, 14 N.C. App. 508, 510 (1972) (same).
198. 102 N.C. App. 93 (1991).
199. See also Pulliman, 78 N.C. App. at 131-33.
200. See Wall, 96 N.C. App. at 49-50; Smith, 155 N.C. App. at 512-13.
201. See, e.g., State v. Lorenzo, 147 N.C. App. 728, 734-35 (2001) (indictment charging conspiracy to traf-
c in marijuana by delivery was not defective for failing to name the person to whom defendant allegedly
conspired to sell or deliver the marijuana).
202. See State v. Ledwell, 171 N.C. App. 328, 331 (2005).
unlawful possession.
203
Indictments charging possession with intent to sell or deliver need not
allege the person to whom the defendant intended to distribute the controlled substance.
204
For case law pertaining to drug quantity, see infra pp. 4647. For case law pertaining to the
name of the controlled substance, see infra pp. 4748.
3. Tracking
An indictment charging conspiracy to trac in controlled substances by sale or delivery is suf-
cient even if it does not identify the person with whom the defendant conspired to sell or deliver
the controlled substance.
205
For case law pertaining to drug quantity in tracking cases, see infra pp. 4647.
4. Maintaining a Dwelling
Te specic address of the dwelling need not be alleged in an indictment charging the defendant
with maintaining a dwelling.
206
5. Drug Paraphernalia
In State v. Moore,
207
an indictment charging possession of drug paraphernalia alleged that the
defendant possessed drug paraphernalia, to wit: a can designed as a smoking device. However,
none of the evidence at trial related to a can; rather, it described crack cocaine in a folded brown
paper bag with a rubber band around it. After denying the defendants motion to dismiss, the trial
court granted the States motion to amend the indictment striking a can designed as a smoking
device and replacing it with drug paraphernalia, to wit: a brown paper container. Te court of
appeals held that because this change constituted a substantial alteration of the indictment, it
was impermissible and the motion to dismiss should have been granted. It reasoned: As com-
mon household items and substances may be classied as drug paraphernalia when considered
in the light of other evidence, in order to mount a defense to the charge of possession of drug
paraphernalia, a defendant must be apprised of the item or substance the State categorizes as
drug paraphernalia. Without citing Moore, a later case held that no plain error occurred when
the indictment charged the defendant with possessing drug paraphernalia, SCALES FOR
PACKAGING A CONTROLLED SUBSTANCE, but the trial court instructed the jury that it
could nd the defendant guilty if it concluded that he knowingly possessed drug paraphernalia,
without mentioning scales or packaging.
208

203. See Bennett, 280 N.C. at 169.
204. See State v. Campbell, 18 N.C. App. 586, 589 (1973) (decided under prior law).
205. See Lorenzo, 147 N.C. App. at 734.
206. See State v. Grady, 136 N.C. App. 394, 396-98 (2000) (no error in allowing amendment of dwellings
address in indictment for maintaining dwelling for use of controlled substance; address changed from 919
Dollard Town Road to 929 Dollard Town Road; because the specic designation of the dwellings address
need not be alleged in an indictment for this oense, the amendment did not substantially alter the charge
set forth in the indictment; also, defendant could not have been misled or surprised because another count
in the same indictment contained the correct address).
207. 162 N.C. App. 268 (2004).
208. State v. Shearin, 170 N.C. App. 222, 232-33 (2005).
6. Obtaining Controlled Substance by Fraud or Forgery
Cases involving challenges to indictments charging obtaining a controlled substance by forgery
are annotated below.
State v. Brady, 147 N.C. App. 755, 758 (2001) (no error in allowing amendment to
change the controlled substance named from Xanax to Percocet in an indictment
for obtaining a controlled substance by forgery; the name of the controlled substance is
not necessary in an indictment charging this oense).
State v. Baynard, 79 N.C. App. 559, 561-62 (1986) (indictments charging crime of
obtaining controlled substance by fraud and forgery under G.S. 90-108(a)(10) were
adequate to support conviction, even though they did not specically state that defen-
dant presented forged prescriptions knowing they were forged; indictments alleged that
the oense was done intentionally and contained the words misrepresentation, fraud,
deception and subterfuge, all of which implied specic intent to misrepresent).
State v. Fleming, 52 N.C. App. 563, 565-66 (1981) (indictment properly charged oense
under G.S. 90-108(a)(10); the illegal means employed was alleged with sucient
particularity).
State v. Booze, 29 N.C. App. 397, 398-400 (1976) (indictment alleging the time and place
and the persons from whom defendant attempted to acquire the controlled substance,
identifying the controlled substance, and stating the illegal means with particularity,
by using a forged prescription and presenting it to the named pharmacists, was suf-
cient; it was not necessary to make further factual allegations as to the nature of the
forged prescriptions or to incorporate the forged prescriptions in the bills).
7. Amount of Controlled Substance
When the amount of the controlled substance is an essential element of the oense, it must be
properly alleged in the indictment. Amount is an essential element with felonious possession
of marijuana,
209
felonious possession of hashish,
210
and tracking in controlled substances.
211

Quantity is not an element of an oense under 90-95(a)(1).
212
8. Drug Name
When the identity of the controlled substance is an element of the oense,
213
the indictment must
allege a substance that is included in the schedules of controlled substances.
214
Tus, when an
indictment alleged that the defendant possessed Methylenedioxyamphetamine (MDA), a con-
trolled substance included in Schedule I, and no such controlled substance by that name is listed
in Schedule I, the indictment was defective.
215
Similarly, an indictment that identied the con-
trolled substance allegedly possessed, sold, and delivered as methylenedioxymethamphetamine a
controlled substance which is included in Schedule I of the North Carolina Controlled Substances
Act was defective because although 3, 4-Methylenedioxymethamphetamine was listed in
209. See State v. Partridge, 157 N.C. App. 568, 570-71 (2003) (indictment charging felonious possession
of marijuana was defective because it did not state drug quantity; the weight of the marijuana is an essential
element of this oense); State v. Perry, 84 N.C. App. 309, 311 (1987) (the elements of felony possession were
set out with sucient clarity in indictment that specically mentioned drug quantity).
210. See State v. Peoples, 65 N.C. App. 168, 168 (1983) (indictment that failed to allege the amount of
hashish possessed could not support a felony conviction).
211. See State v. Outlaw, 159 N.C. App. 423 (tracking indictment that failed to allege weight of cocaine
was invalid) (citing State v. Epps, 95 N.C. App. 173 (1989)); State v. Trejo, 163 N.C. App. 512 (2004) (rejecting
defendants argument that the indictments charging him with tracking in marijuana by possession and
tracking in marijuana by transportation were fatally defective because each failed to correctly specify
the quantity of marijuana necessary for conviction; indictment charging tracking in marijuana by pos-
session alleged that defendant possess[ed] 10 pounds or more but less than 50 pounds of marijuana; the
indictment charging defendant with tracking in marijuana by transportation alleged that defendant
transport[ed] 10 pounds or more but less than 50 pounds of marijuana; indictments, although overbroad,
did allege the required amount of marijuana; fact that challenged indictments were drafted to include the
possibility that defendant possessed and transported exactly ten pounds of marijuana (which does not con-
stitute tracking in marijuana) does not invalidate the indictments); Epps, 95 N.C. App. at 175-76 (quash-
ing conspiracy to trac in cocaine indictment for failure to refer to amount of cocaine); State v. Keyes, 87
N.C. App. 349, 358-59 (1987) (although statute makes it a tracking felony to possess four grams or more,
but less than 14 grams of heroin, the indictment charged possession of more than four but less than four-
teen grams of heroin; distinguishing Goforth, discussed below, and holding that variance was not fatal; the
indictment excludes from criminal prosecution the possession of exactly four grams, whereas the statute
includes the possession of exactly four grams; the indictment, while limiting the scope of defendants liabil-
ity, is clearly within the connes of the statute); State v. Goforth, 65 N.C. App. 302, 305 (1983) (applying
prior law that criminalized tracking in marijuana at weights of in excess of 50 pounds and holding that
indictment charging conspiracy to trac in at least 50 pounds of marijuana was defective). But see Epps,
95 N.C. App. at 176-77 (arming tracking by sale conviction even though relevant count in indictment
did not allege a drug quantity; defendant was charged in a two-count indictment, count one charged traf-
cking by possession of a specied amount of cocaine and count two charged tracking by sale but did not
state an amount; the two counts, when read together, informed defendant that he was being charged with
tracking by sale).
212. See State v. Hyatt, 98 N.C. App. 214, 216 (1990) (while the quantity of drugs seized is evidence of
the intent to sell, it is not an element of the oense); Peoples, 65 N.C. App. at 169 (same).
213. See, e.g., supra pp. 43, 44.
214. State v. Ahmadi-Turshizi, 175 N.C. App. 783, 784-85 (2006); State v. Ledwell, 171 N.C. App. 328
(2005).
215. Ledwell, 171 N.C. App. at 331-33.
Schedule I, methylenedioxymethamphetamine was not.
216
Notwithstanding this, cases have held
that controlled substance indictments will not be found defective for minor errors in identifying
the relevant controlled substance, such as cocoa instead of cocaine,
217
cocaine instead of a mix-
ture containing cocaine,
218
and the use of a trade name instead of a chemical name.
219
T. Weapons Offenses and Firearm Enhancement
Several cases addressing indictment issues with regard to weapons oenses and the rearm
enhancement in G.S. 15A-1340.16A are annotated below.
1. Shooting into Occupied Property
State v. Pickens, 346 N.C. 628, 645-46 (1997) (no fatal variance between indictment
alleging that defendant red into an occupied dwelling with a shotgun and evidence
establishing that the shot came from a handgun; the essential element of the oense is
to discharge ... [a] rearm; indictment alleging that defendant discharged a shotgun, a
rearm alleged that element and the averment to the shotgun was not necessary, mak-
ing it mere surplusage in the indictment).
State v. Cockerham, 155 N.C. App. 729, 735-36 (2003) (indictment charging shooting
into occupied property was not defective for failing to allege that defendant red into
a building, structure or enclosure; indictment alleged defendant shot into an apart-
ment and as such was sucient; an indictment which avers facts constituting every
element of the oense need not be couched in the language of the statute).
State v. Bland, 34 N.C. App. 384, 385 (1977) (no fatal variance between indictment
alleging that defendant shot into an occupied building and evidence showing that he
shot into an occupied trailer; indictment specically noted that the occupied building
was located at 5313 Park Avenue, the address of the trailer).
State v. Walker, 34 N.C. App. 271, 272-74 (1977) (indictment not defective for failing to
allege that the defendant knew or should have known that the trailer was occupied by
one or more persons).
2. Possession of Firearm by Felon
G.S. 14-415.1 makes it a crime for a felon to possess a rearm or weapon of mass destruction.
G.S. 14-415.1(c) provides that an indictment charging a defendant with this crime shall be sepa-
rate from any indictment charging him with other oenses related to or giving rise to a charge
under this section. It further provides that the indictment
must set forth the date that the prior oense was committed, the type of oense and the
penalty therefore, and the date that the defendant was convicted or plead guilty to such
216. Ahmadi-Turshizi, 175 N.C. App. at 785-86.
217. See State v. Trift, 78 N.C. App. 199, 201-02 (1985).
218. State v. Tyndall, 55 N.C. App. 57, 61-62 (1981) (although the indictment alleged that defendant sold
cocaine rather than a mixture containing cocaine, this was not a fatal variance).
219. State v. Newton, 21 N.C. App. 384, 385-86 (1974) (no fatal variance between indictment charging
that defendant possessed Desoxyn and evidence that showed defendant possessed methamphetamine;
Desoxyn is a trade name for methamphetamine hydrochloride).
oense, the identity of the court in which the conviction or plea of guilty took place and
the verdict and judgment rendered therein.
Te court of appeals has held that the statutory requirement that the indictment state the convic-
tion date for the prior oense is directory and not mandatory.
220
Tus, it concluded that failure
to allege the date of the prior conviction did not render an indictment defective.
221
Also, State
v. Boston,
222
rejected a defendants claim that an indictment for this oense was fatally defective
because it failed to state the statutory penalty for the prior felony conviction. Te court held that
the provision . . . that requires the indictment to state the penalty for the prior oense is not
material and does not aect a substantial right, that the defendant was apprised of the relevant
conduct, and [t]o hold otherwise would permit form to prevail over substance. Other relevant
cases are summarized below.
State v. Langley, 173 N.C. App. 194, 196-99 (2005) (in conviction under a prior version
of G.S. 14-415.1, the court held that there was a fatal variance where the indictment
charged that the defendant was in possession of a handgun and the States evidence at
trial tended to show that defendant possessed a rearm with barrel length less than 18
inches and overall length less than 26 inches, a sawed-o shotgun).
223
Finding No Fatal Defect or Variance/No Error With Respect to an Amendment
State v. Coltrane, __ N.C. App. __, 656 S.E.2d 322 (2008) (the trial court did not err
by allowing the State to amend the allegation that the defendants underlying felony
conviction occurred in Montgomery County Superior Court to state that it occurred
in Guilford County Superior Court; the indictment correctly identied all of the other
allegations required by G.S. 14-415.1(c).
State v. Bishop, 119 N.C. App. 695, 698-99 (1995) (indictment was not invalid for failing
to allege (1) that possession of the rearm was away from defendants home or busi-
ness; (2) that defendants prior Florida felony was substantially similar to a particular
North Carolina crime; and (3) to which North Carolina statute the Florida conviction
was similar; omission of the situs of the oense was not an error because situs is an
exception to the oense, not an essential element; omission of a statement that the
Florida felony was substantially similar to a particular North Carolina crime was not
an error because the indictment gave sucient notice of the oense charged; the indict-
ment clearly described the felony committed in Florida, satisfying the requirements of
G.S. 14-415.1(b)(3) and properly charging defendant with possession of rearms by a
felon).
State v. Riggs, 79 N.C. App. 398, 402 (1986) (indictment charging that defendant pos-
sessed a Charter Arms .38 caliber pistol, which is a handgun was not invalid for fail-
ing to allege the length of the pistol).
220. State v. Inman, 174 N.C. App. 567 (2005).
221. Id. at 571.
222. 165 N.C. App. 214 (2004).
223. At the time, the prior version of the statute made it a crime for a felon to possess any handgun or
other rearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any
weapon of mass destruction as dened by G.S. 14-288.8(c). G.S. 14-415.1(a) (2003).
3. Possession of Weapon of Mass Destruction
State v. Blackwell, 163 N.C. App. 12 (2004) (no fatal variance between indictment charg-
ing possession of weapon of mass destruction that alleged possession of a Stevens 12
gauge single-shot shotgun and evidence at trial that shotgun was manufactured by Jay
Stevens Arms; even if there was no evidence that the shotgun was a Stevens shotgun,
there would be no fatal variance because any person of common understanding would
have understood that he was charged with possessing the sawed-o shotgun that he
used to shoot the victim).
4. Firearm Enhancement
G.S. 15A-1340.16A provides for an enhanced sentence if the defendant is convicted of a felony fall-
ing within one of the specied classes and the defendant used, displayed, or threatened to use or
display a rearm during commission of the felony. Te statute provides that an indictment is su-
cient if it alleges that the defendant committed the felony by using, displaying, or threatening the
use or display of a rearm and the defendant actually possessed the rearm about the defendants
person.
224
U. Motor Vehicle Offenses
1. Impaired Driving
G.S. 20-138.1(c) and 20-138.2(c) allow short-form pleadings for impaired driving and impaired
driving in a commercial vehicle respectively. For a discussion of the implications of Blakely v.
Washington,
225
on these oenses, see supra p. 16. A case dealing with an allegation regarding the
location of an impaired driving oense is summarized below.
State v. Snyder, 343 N.C. 61, 65-68 (1996) (indictment alleged that oense occurred on
a street or highway; trial judge properly permitted the State to amend the indictment to
read on a highway or public vehicular area; although the situs of the impaired driving
oense is an essential element, the indictment simply needs to contain an allegation of
a situs covered by the statute and no greater specicity is required; change in this case
merely a renement in the description of the type of situs on which the defendant was
driving rather than a change in an essential element of the oense).
2. Habitual Impaired Driving
Under the current version of the habitual impaired driving statute,
226
this oense is committed
when a person drives while impaired and has three or more convictions involving impaired driv-
ing within the last ten years. Under an earlier version of the statute, the look-back period for
prior convictions was only seven years. At least one case has held, in connection with a prosecu-
tion under the prior version of the statute, that it was error to allow the State to amend a habitual
impaired driving indictment to correct the date of a prior conviction and thereby bring it within
the seven-year look-back period.
227
Indictments charging habitual impaired driving must conform
to G.S. 15A-928. Cases on point are summarized below.
224. G.S. 15A-1340.16A(d).
225. 542 U.S. 296 (2004).
226. G.S. 20-138.5.
227. State v. Winslow, 360 N.C. 161 (2005).
State v. Mark, 154 N.C. App. 341, 344-45 (2002) (rejecting defendants argument that
indictment violated G.S. 15A-928 because count three was entitled Habitual Impaired
Driving), ad, 357 N.C. 242 (2003).
State v. Lobohe, 143 N.C. App. 555, 557-59 (2001) (indictment which alleged in one
count the elements of impaired driving and in a second count the previous convictions
elevating the oense to habitual impaired driving properly alleged habitual impaired
driving) (citing G.S. 15A-928(b)).
State v. Baldwin, 117 N.C. App. 713, 715-16 (1995) (indictment alleged the essential
elements of habitual impaired driving; contrary to defendants claim, it alleged that
defendant had been previously convicted of three impaired driving oenses).
3. Speeding to Elude Arrest
G.S. 20-141.5 makes it a misdemeanor to operate a motor vehicle while eeing or attempted to
elude a law enforcement ocer who is in lawful performance of his or her duties. Te crime is
elevated to a felony if two or more specied aggravating factors are present, or if the violation is
the proximate cause of death.
An indictment for this crime need not allege the lawful duties the ocer was performing.
228

When the charge is felony speeding to elude arrest based on the presence of aggravating factors,
the indictment is sucient if it charges those aggravating factors by tracking the statutory lan-
guage.
229
Tus, when the aggravating factor is reckless driving proscribed by G.S. 20-140,
230
the
indictment need not allege all of the elements of reckless driving.
231
However, when the aggravat-
ing factor felony version of this oense is charged, the aggravating factors are essential elements of
the crime and it is error to allow the State to amend the indictment to add an aggravating factor.
232
4. Driving While License Revoked
In State v. Scott,
233
the court rejected the defendants argument that an indictment for driving
while license revoked was defective because it failed to list the element of notice of suspension.
Acknowledging that proof of actual or constructive notice is required for a conviction, the court
held that it is not necessary to charge on knowledge of revocation when unchallenged evidence
shows that the State has complied with the provisions for giving notice of revocation.
234

228. State v. Teel, 180 N.C. App. 446, 448-49 (2006).
229. State v. Stokes, 174 N.C. App. 447, 451-52 (2005) (indictment properly charged this crime when it
alleged that the defendant unlawfully, willfully and feloniously did operate a motor vehicle on a highway,
Interstate 40, while attempting to elude a law enforcement ocer, T.D. Dell of the Greensboro Police
Department, in the lawful performance of the ocers duties, stopping the defendants vehicle for vari-
ous motor vehicle oenses, and that at the time of the violation: (1) the defendant was speeding in excess
of 15 miles per hour over the legal speed limit; (2) the defendant was driving recklessly in violation of
G.S. 20-140; and (3) there was gross impairment of the defendants faculties while driving due to consump-
tion of an impairing substance); see also State v. Scott, 167 N.C. App. 783, 787-88 (2005) (indictment charg-
ing driving while license revoked as an aggravating factor without spelling out all elements of that oense
was not defective).
230. G.S. 20-141.5(b)(3).
231. Stokes, 174 N.C. App. at 451-52.
232. State v. Moses, 154 N.C. App. 332, 337-38 (2002) (error to allow the State to amend misdemeanor
speeding to allude arrest indictment by adding an aggravating factor that would make the oense a felony).
233. 167 N.C. App. 783 (2005).
234. Id. at 787.
V. General Crimes
1. Attempt
An indictment charging a completed oense is sucient to support a conviction for an attempt
to commit the oense.
235
Tis is true even though the completed crime and the attempt are not in
the same statute.
236
G.S. 15-144, the statute authorizing use of short-form indictment for homicide,
authorizes the use of the short-form indictment to charge attempted rst-degree murder.
237
2. Solicitation
In solicitation indictments, it is not necessary to allege with technical precision the nature of the
solicitation.
238
3. Conspiracy
For the law regarding conspiracy to sell or deliver controlled substances indictments, see supra
p. 44. For cases pertaining to allegations regarding the date of a conspiracy oense, see supra p. 8.
Conspiracy indictments need not describe the subject crime with legal and technical accu-
racy because the charge is the crime of conspiracy and not a charge of committing the subject
crime.
239
Tus, the court of appeals has upheld a conspiracy indictment that alleged an agreement
between two or more persons to do an unlawful act and contained allegations regarding their pur-
pose, in that case to feloniously forge, falsely make and counterfeit a check.
240
Te court rejected
the defendants argument that the indictment should have been quashed for failure to specically
allege the forgery of an identied instrument.
241
4. Accessory After the Fact to Felony
Accessory after the fact to a felony is not a lesser included oense of the principal felony.
242
Tis
suggests that an indictment charging only the principal felony will be insucient to convict for
accessory after the fact.
243
235. See G.S. 15-170; State v. Gray, 58 N.C. App. 102, 106 (1982); State v. Slade, 81 N.C. App. 303, 306
(1986)
236. See Slade, 81 N.C. App. at 306 (1987) (discussing State v. Arnold, 285 N.C. 751, 755 (1974), and
describing it as a case in which the defendant was indicted for the common law felony of arson but was
convicted of the statutory felony of arson).
237. State v. Jones, 359 N.C. 832, 834-38 (2005) (noting that it is sucient for the State to insert the
words attempt to into the short form language); State v. Reid, 175 N.C. App. 613, 617-18 (2006) (following
Jones).
238. State v. Furr, 292 N.C. 711, 722 (1977) (holding indictment alleging defendant solicited another to
murder is sucient to take the case to the jury upon proof of solicitation to nd someone else to commit
murder, at least where there is nothing to indicate defendant insisted that someone other than the solicitee
commit the substantive crime which is his object).
239. State v. Nicholson, 78 N.C. App. 398, 401 (1985) (rejecting defendants argument that conspiracy
to commit forgery indictment was fatally defective because it failed to allege specically the forgery of an
identied instrument).
240. Id.
241. See id.
242. See State v. Jones, 254 N.C. 450, 452 (1961).
243. Compare infra n. 246 & accompanying text (discussing accessory before the fact). For a case allow-
ing amendment of an accessory after the fact indictment, see State v. Carrington, 35 N.C. App. 53, 56-58
(1978) (indictments charged defendant with being an accessory after the fact to Arthur Parrish and an
W. Participants in Crime
An indictment charging a substantive oense need not allege the theory of acting in concert,
244

aiding or abetting,
245
or accessory before the fact.
246
Tus, the short-form murder indictment is
sucient to convict under a theory of aiding and abetting.
247
Because allegations regarding these
theories are treated as irrelevant and surplusage,
248
the fact that an indictment alleges one such
theory does not preclude the trial judge from instructing the jury that it may convict on another
such theory not alleged,
249
or as a principal.
250
unknown black male in the murder and armed robbery of a named victim; trial court did not err by allow-
ing amendment of the indictments to remove mention of Parrish, who had earlier been acquitted).
244. See State v. Westbrook, 345 N.C. 43, 57-58 (1996).
245. See State v. Ainsworth, 109 N.C. App. 136, 143 (1993) (rejecting defendants argument that rst
degree rape indictment was insucient because it failed to charge her explicitly with aiding and abetting);
State v. Ferree, 54 N.C. App. 183, 184 (1981) ([A] person who aids or abets another in the commission of
armed robbery is guilty and it is not necessary that the indictment charge the defendant with aiding and
abetting.); State v. Lancaster, 37 N.C. App. 528, 532-33 (1978).
246. See G.S. 14-5.2 (All distinctions between accessories before the fact and principals are abol-
ished.); Westbrook, 345 N.C. at 58 (1996) (indictment charging murder need not allege accessory before the
fact); State v. Gallagher, 313 N.C. 132, 141 (1985) (indictment charging the principal felony will support trial
and conviction as an accessory before the fact).
247. State v. Glynn, 178 N.C. App. 689, 694-95 (2006).
248. State v. Estes, __ N.C. App. __, 651 S.E.2d 598 (2007).
249. Estes, __ N.C. App. __, 651 S.E.2d 598 (trial judge could charge the jury on the theory of aiding and
abetting even though indictment charged acting in concert).
250. State v. Fuller, 179 N.C. App. 61, 66-67 (2006) (where superseding indictment charged the defendant
only with aiding and abetting indecent liberties, the trial judge did not err in charging the jury that it could
convict if the defendant was an aider or abettor or a principal).
This bulletin is published and posted online by the School of Government to address issues of interest to government ofcials. This publica-
tion is for educational and informational use and may be used for those purposes without permission. Use of this publication for commercial
purposes or without acknowledgment of its source is prohibited.
To browse a complete catalog of School of Government publications, please visit the Schools website at www.sog.unc.edu or contact the
Publications Division, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail
[email protected]; telephone 919.966.4119; or fax 919.962.2707.
2008
School of Government. The University of North Carolina at Chapel Hill

1
2011 School of Government. The University of North Carolina at Chapel Hill

Supplement to AOBJ 2008/03 on Indictments
J essica Smith, UNC School of Government
J anuary 13, 2012

General Matters
Date of Offense

State v. Khouri, __ N.C. App. __, __ S.E.2d __ (Aug. 16, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMDMwLTEucGRm). In sexual
assault case involving a child victim, there was a fatal variance between the indictment, that alleged an
offense date of March 30, 2000 December 31, 2000, and the evidence, which showed that the conduct
occurred in the Spring of 2001. The State never moved to amend the indictment.

In Re A.W., __ N.C. App. __, 706 S.E.2d 305 (Feb. 15, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC03MTMtMS5wZGY). There was no
fatal variance between a juvenile delinquency petition for indecent liberties alleging an offense date of
November 14, 2008, and the evidence which showed an offense date of November 7-9, 2008. The
juvenile failed to show that his ability to present an adequate defense was prejudiced by the variance.

State v. Hueto, 195 N.C. App. 67 (J an. 20, 2009). No fatal variance between the period of time alleged in
the indictment and the evidence introduced at trial. The defendant was indicted on six counts of statutory
rape: two counts each for the months of J une, August, and September 2004. Assuming that the victims
testimony was insufficient to prove that the defendant had sex with her twice in August, the court held
that the state nevertheless presented sufficient evidence that the defendant had sex with her at least six
times between J une 2004 and August 12, 2004, including at least four times in J uly.

State v. Pettigrew, __ N.C. App. __, 693 S.E.2d 698 (June 1, 2010)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8wOS0xMjI2LTEucGRm). In a child sex
case, there was substantial evidence that the defendant abused the victim during the period alleged in the
indictment and specified in the bill of particulars (Feb. 1, 2001 Nov. 20, 2001) and at a time when the
defendant was sixteen years old and thus could be charged as an adult. The evidence showed that the
defendant abused the victim for a period of years that included the period alleged and that the defendant,
who turned sixteen on J anuary 23, 2001, was sixteen during the entire time frame alleged. Relying on the
substantial evidence of acts committed while the defendant was sixteen, the court also rejected the
defendants argument that by charging that the alleged acts occurred on or about February 1, 2001
November 20, 2001, the indictment could have encompassed acts committed before he turned sixteen.

Delay in Obtaining Indictment

State v. Martin, 195 N.C. App. 43 (J an. 20, 2009). No due process violation resulted from the delay
between commission of the offenses (2000) and issuance of the indictments (2007). Although the
department of social services possessed the incriminating photos and instituted an action to terminate
parental rights in 2001, the department did not then share the photos or report evidence of abuse to law
enforcement or the district attorney. Law enforcement was not informed about the photos until 2007. The
departments delay was not attributable to the state.

2

Short Form Indictments

State v. Freeman, __ N.C. App. __, 690 S.E.2d 17 (Mar. 2, 2010). Short-form murder indictment put the
defendant on notice that the State might proceed on a theory of felony-murder.

State v. Thomas, 196 N.C. App. 523 (May 5, 2009). The trial court did not err by denying the defendants
request to submit the lesser offense of assault on a female when the defendant was charged with rape
using the statutory short form indictment. The defense to rape was consent. The defendant argued on
appeal that the jury could have found that the rape was consensual but that an assault on a female had
occurred. The court rejected that argument reasoning that the acts that the defendant offered in support of
assault on a female occurred separately from those constituting rape.

Names
Generally

State v. Johnson, __ N.C. App. __, 690 S.E.2d 707 (Mar. 2, 2010). No fatal variance where an indictment
charging sale and delivery of a controlled substance alleged that the sale was made to Detective
Dunabro. The evidence at trial showed that the detective had gotten married and was known by the name
Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both a
married and maiden name, the indictment sufficiently identified the purchaser. The court noted that
[w]here different names are alleged to relate to the same person, the question is one of identity and is
exclusively for the jury to decide.

Victims Name

State v. McKoy, 196 N.C. App. 650 (May 5, 2009). Rape and sexual offense indictments were not fatally
defective when they identified the victim solely by her initials, RTB. The defendant was not confused
regarding the victims identity; because the victim testified at trial and identified herself in open court, the
defendant was protected from double jeopardy.

In Re M.S., 199 N.C. App. 260 (Aug. 18, 2009). Distinguishing McKoy (discussed immediately above),
the court held that juvenile petitions alleging that the juvenile committed first-degree sexual offense were
defective because they failed to name a victim. The petitions referenced the victim as a child, without
alleging the victims names.

Punishment/Sentencing Issues

State v. Curry, __ N.C. App. __, 692 S.E.2d 129 (April 20, 2010). Indictment alleging that the defendant
discharged a barreled weapon into an occupied residence properly charged the Class D version of this
felony (shooting into occupied dwelling or occupied conveyance in operation) even though it erroneously
listed the punishment as the Class E version (shooting into occupied property).

State v. Carter, __ N.C. App. __, __ S.E.2d __ (J une 21, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC05NzQtMS5wZGY=). Sentencing
factors that might lead to an aggravated sentence need not be alleged in the indictment.

Statutory Reference

3

State v. Burge, __ N.C. App. __, 710 S.E.2d 446 (May 17, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC00OTMtMS5wZGY=). Because an
arrest warrant charged the defendant with a violation of G.S. 67-4.2 (failing to confine a dangerous dog),
it could not support a conviction for a violation of G.S. 67-4.3 (attack by a dangerous dog). Even though
the warrant cited G.S. 67-4.2, it would have been adequate if it had alleged all of the elements of a G.S.
67-4.3 offense. However, it failed to do so as it did not allege that the injuries required medical treatment
costing more than $100.

Specific Offenses
Accessory After the Fact

State v. Cole, __ N.C. App. __, 703 S.E.2d 842 (J an. 4, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMzktMS5wZGY). An indictment
charging accessory after the fact to first-degree murder was sufficient to support a conviction of accessory
after the fact to second-degree murder. The indictment alleged that a felony was committed, that the
defendant knew that the person he assisted committed that felony, and that he rendered personal
assistance to the felon; it thus provided adequate notice to prepare a defense and protect against double
jeopardy.

Conspiracy

State v. Billinger, __ N.C. App. __, __ S.E.2d __ (J uly 5, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDEyLTEucGRm). A conspiracy to
commit armed robbery indictment was defective when it did not allege an agreement to commit an
unlawful act. The court rejected the States argument that the indictment's caption, which identified the
charge as "Conspiracy to Commit Robbery with a Dangerous Weapon," and the indictment's reference to
the offense being committed in violation of G.S. 14-2.4 (governing punishment for conspiracy to commit
a felony) saved the indictment.

State v. Pringle, __ N.C. App. __, 694 S.E.2d 505 (J une 15, 2010). When a conspiracy indictment names
specific individuals with whom the defendant is alleged to have conspired and the evidence shows the
defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find
the defendant guilty based upon an agreement with persons not named in the indictment. However, the
jury instruction need not specifically name the individuals with whom the defendant was alleged to have
conspired as long as the instruction comports with the material allegations in the indictment and the
evidence at trial. In this case, the indictment alleged that the defendant conspired with J imon Dollard and
an unidentified male. The trial court instructed the jury that it could find the defendant guilty if he
conspired with at least one other person. The evidence showed that the defendant and two other men
conspired to commit robbery. One of the other men was identified by testifying officers as J imon Dollard.
The third man evaded capture and was never identified. Although the instruction did not limit the
conspiracy to those named in the indictment, it was in accord with the material allegations in the
indictment and the evidence presented at trial and there was no error.

Assault

In Re D.S., 197 N.C. App. 598 (J une 16, 2009). No fatal variance occurred when a juvenile petition
alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched
her with an object.

4

Assault by Strangulation

State v. Williams, __ N.C. App. __, 689 S.E.2d 412 (Dec. 8, 2009). Even if there was a fatal variance
between the indictment, which alleged that the defendant accomplished the strangulation by placing his
hands on the victims neck, and the evidence at trial, the variance was immaterial because the allegation
regarding the method of strangulation was surplusage.

Assault on Government Officer

State v. Noel, __ N.C. App. __, 690 S.E.2d 10 (Mar. 2, 2010). Indictment charging assault on a
government officer under G.S. 14-33(c)(4) need not allege the specific duty the officer was performing
and if it does, it is surplusage.

State v. Roman, __ N.C. App. __, 692 S.E.2d 431 (May 4, 2010). There was no fatal variance between a
warrant charging assault on a government officer under G.S. 14-33(c)(4) and the evidence at trial. The
warrant charged that the assault occurred while the officer was discharging the duty of arresting the
defendant for communicating threats but at trial the officer testified that the assault occurred when he was
arresting the defendant for being intoxicated and disruptive in public. The pivotal element was whether
the assault occurred while the officer was discharging his duties; what crime the arrest was for is
immaterial.

Malicious Conduct by Prisoner

State v. Noel, __ N.C. App. __, 690 S.E.2d 10 (Mar. 2, 2010). Indictment charging malicious conduct by
prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it
is surplusage.

Child Abuse

State v. Lark, 198 N.C. App. 82 (J uly 7, 2009). An indictment charging felony child abuse by sexual act
under G.S. 14-318.4(a2) is not required to allege the particular sexual act committed. Language in the
indictment specifying the sexual act as anal intercourse was surplusage.

Indecent Liberties

State v. Carter, __ N.C. App. __, 707 S.E.2d 700 (Mar. 1, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC02NDgtMS5wZGY). In an indecent
liberties case, the trial judges jury instructions were supported by the indictment. The indictment tracked
the statute and did not allege an evidentiary basis for the charge. The jury instructions, which identified
the defendants conduct as placing his penis between the childs feet, was a clarification of the evidence
for the jury.

Injury to Real Property

State v. Lilly, 195 N.C. App. 697 (Mar. 17, 2009). No fatal variance between an indictment charging
injury to real property and the evidence at trial. The indictment incorrectly described the lessee of the real
property as its owner. The indictment was sufficient because it identified the lawful possessor of the

5

property.

Kidnapping

State v. Yarborough, 198 N.C. App. 22 (J uly 7, 2009). Although a kidnapping indictment need not allege
the felony intended, if it does, the State is bound by that allegation. Here, the indictment alleged
confinement and restraint for the purpose of committing murder, but the evidence showed that the
confinement or restraint was for the purpose of a committing a robbery. The State was bound by the
allegation and had to prove the confinement and restraint was for the purposes of premeditated and
deliberate murder (it could not rely on felony-murder).

Larceny

State v. Abbott, __ N.C. App. __, __ S.E.2d __ (Dec. 20, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMS02NTgtMS5wZGY=). (1) In a larceny
by employee case, the trial court erred by allowing the State to amend the bill of indictment. The
indictment stated that the defendant was an employee of Cape Fear Carved Signs, Incorporated. The
State moved to amend by striking the word Incorporated, explaining that the business was a sole
proprietorship of Mr. Neil Schulman. The amendment was a substantial alteration in the charge. (2) The
court rejected the States argument that the defendant waived his ability to contest the indictment by
failing to move to dismiss it at trial, reiterating that jurisdictional issues may be raised at any time.

In re D.B., __ N.C. App. __, __ S.E.2d __ (Aug. 16, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDc2LTEucGRm). A juvenile
petition alleging felony larceny was fatally defective because it contained no allegation that the alleged
victim, the Crossings Golf Club, was a legal entity capable of owning property.

State v. McNeil, __ N.C. App. __, 707 S.E.2d 674 (Mar. 1, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC00NTYtMS5wZGY). An indictment
for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective.

State v. Patterson, 194 N.C. App. 608 (J an 6, 2009). Larceny indictment alleging victims name as First
Baptist Church of Robbinsville was fatally defective because it did not indicate that the church was a
legal entity capable of owning property.

State v. Gayton-Barbossa, 197 N.C. App. 129 (May 19, 2009). Fatal variance in larceny indictment
alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it
belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special
property interest in the gun even though the gun was kept in a bedroom occupied by both women.

Burglary and Related Offenses

State v. McCormick, __ N.C. App. __, 693 S.E.2d 195 (May 18, 2010). No fatal variance existed when a
burglary indictment alleged that defendant broke and entered the dwelling house of Lisa McCormick
located at 407 Wards Branch Road, Sugar Grove Watauga County but the evidence at trial indicated
that the house number was 317, not 407. On this point, the court followed State v. Davis, 282 N.C. 107
(1972) (no fatal variance where indictment alleged that the defendant broke and entered the dwelling
house of Nina Ruth Baker located at 840 Washington Drive, Fayetteville, North Carolina, but the

6

evidence showed that Ruth Baker lived at 830 Washington Drive). The court also held that the burglary
indictment was not defective on grounds that it failed to allege that the breaking and entering occurred
without consent. Following, State v. Pennell, 54 N.C. App. 252 (1981), the court held that the indictment
language alleging that the defendant unlawfully and willfully did feloniously break and enter implied a
lack of consent.

State v. Chillo, __ N.C. App. __, 705 S.E.2d 394 (Dec. 21, 2010)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC02MjItMS5wZGY). (1) An indictment
for breaking or entering a motor vehicle alleging that the vehicle was the personal property of D.L.
Peterson Trust was not defective for failing to allege that the victim was a legal entity capable of owning
property. The indictment alleged ownership in a trust, a legal entity capable of owning property. (2)
Because the State indicted the defendant for breaking or entering a motor vehicle with intent to commit
larceny therein, it was bound by that allegation and had to prove that the defendant intended to commit
larceny.

State v. Clagon, __ N.C. App. __, 700 S.E.2d 89 (Oct. 5, 2010)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC0yOTktMS5wZGY=). A burglary
indictment does not need to identify the felony that the defendant intended to commit inside the dwelling.

State v. Speight, __ N.C. App. __, __ S.E.2d __ (J une 21, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDY3LTEucGRm). A burglary
indictment alleging that the defendant intended to commit unlawful sex acts was not defective.

State v. Clark, __ N.C. App. __, 702 S.E.2d 324 (Dec. 7, 2010)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC0yMzUtMS5wZGY). (1) Although the
State is not required to allege the felony or larceny intended in an indictment charging breaking or
entering a vehicle, if it does so, it will be bound by that allegation. (2) An indictment properly alleges the
fifth element of breaking and entering a motor vehiclewith intent to commit a felony or larceny
thereinby alleging that the defendant intended to steal the same motor vehicle.

Weapons Offenses
Carrying Concealed

State v. Bollinger, 361 N.C. 251 (May 1, 2009). No fatal variance between indictment and the evidence in
a carrying a concealed weapon case. After an officer discovered that the defendant was carrying knives
and metallic knuckles, the defendant was charged with carrying a concealed weapon. The indictment
identified the weapon as a Metallic set of Knuckles. The trial court instructed the jury concerning one
or more knives. The court, per curiam and without an opinion, summarily affirmed the ruling of the
North Carolina Court of Appeals that the charging language, a Metallic set of Knuckles, was
unnecessary surplusage, and even assuming the trial court erred in instructing on a weapon not alleged in
the charge, no prejudicial error required a reversal where there was evidence that the defendant possessed
knives.

Discharging Weapon Into Property

State v. Curry, __ N.C. App. __, 692 S.E.2d 129 (April 20, 2010). Fact that indictment charging
discharging a barreled weapon into an occupied dwelling used the term residence instead of the
statutory term dwelling did not result in a lack of notice to the defendant as to the relevant charge.

7

Felon in Possession

State v. Taylor, __ N.C. App. __, 691 S.E.2d 755 (April 20, 2010). Felon in possession indictment that
listed the wrong date for the prior felony conviction was not defective, nor was there a fatal variance on
this basis (indictment alleged prior conviction date of December 8, 1992 but judgment for the prior
conviction that was introduced at trial was dated December 18, 1992).

Possession of Weapons on School Grounds

In Re J.C., __ N.C. App. __, 695 S.E.2d 168 (J uly 6, 2010)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC0zMS0xLnBkZg==). A juvenile
petition sufficiently alleged that the juvenile was delinquent for possession of a weapon on school
grounds in violation of G.S. 14-269.2(d). The petition alleged that the juvenile possessed an other
weapon, specified as a steel link from chain. The evidence showed that the juvenile possessed a 3/8-
inch thick steel bar forming a C-shaped link about 3 inches long and 1 inches wide. The link closed
with a -inch thick bolt and the object weighed at least 1 pound. The juvenile could slide his fingers
through the link so that 3-4 inches of the bar could be held securely across his knuckles and used as a
weapon. Finding the petition sufficient the court stated: the item . . . is sufficiently equivalent to what the
General Assembly intended to be recognized as metallic knuckles under [the statute].

Drug Offenses
Drug Name

State v. LePage, __ N.C. App. __, 693 S.E.2d 157 (May 18, 2010). Indictments charging the defendant
with drug crimes and identifying the controlled substance as BENZODIAZEPINES, which is included in
Schedule IV of the North Carolina Controlled Substances Act[.] were defective. Benzodiazepines is not
listed in Schedule IV. Additionally, benzodiazepine describes a category of drugs, some of which are
listed in Schedule IV and some of which are not.

Sale and Delivery of a Controlled Substance

State v. Johnson, __ N.C. App. __, 690 S.E.2d 707 (Mar. 2, 2010). No fatal variance where an indictment
charging sale and delivery of a controlled substance alleged that the sale was made to Detective
Dunabro. The evidence at trial showed that the detective had since gotten married and was known by the
name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by
both married and maiden name, the indictment sufficiently identified the purchaser. The court noted that
[w]here different names are alleged to relate to the same person, the question is one of identity and is
exclusively for the jury to decide.

Manufacture of a Controlled Substance

State v. Hinson, 354 N.C. 414 (Oct. 8, 2010)
(http://appellate.nccourts.org/opinions/?c=1&pdf=MjAxMC8xNzZBMTAtMS5wZGY=). For the reasons
stated in the dissenting opinion below, the court reversed State v. Hinson, __ N.C. App. __, 691 S.E.2d 63
(April 6, 2010). The defendant was indicted for manufacturing methamphetamine by chemically
combining and synthesizing precursor chemicals to create methamphetamine. However, the trial judge
instructed the jury that it could find the defendant guilty if it found that he produced, prepared,

8

propagated, compounded, converted or processed methamphetamine, either by extraction from substances
of natural origin or by chemical synthesis. The court of appeals held, over a dissent, that this was plain
error as it allowed the jury to convict on theories not charged in the indictment. The dissenting judge
concluded that while the trial courts instructions used slightly different words than the indictment, the
import of both the indictment and the charge were the same. The dissent reasoned that the manufacture of
methamphetamine is accomplished by the chemical combination of precursor elements to create
methamphetamine and that the charge to the jury, construed contextually as a whole, was correct.

Maintaining a Dwelling

State v. Garnett, __ N.C. App. __, 706 S.E.2d 280 (Feb. 15, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMTEtMS5wZGY). Theories
included in the trial judges jury instructions were supported by the indictment. The indictment charged
the defendant with maintaining a dwelling for keeping and selling a controlled substance. The trial
court instructed the jury on maintaining a dwelling for keeping or selling marijuana. The use of the
conjunctive and in the indictment did not require the State to prove both theories alleged.

Conspiracy to Traffic

State v. Cobos, __ N.C. App. __, __ S.E.2d __ (May 3, 2011) (
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC01NTctMS5wZGY=). The trial court
committed reversible error by allowing the State to amend an indictment charging conspiracy to engage in
trafficking to deliver Cocaine to add the following language: to deliver 28 grams or more but less than
200 grams of cocaine. To allege all of the essential elements, an indictment for conspiracy to traffic in
cocaine must allege that the defendant facilitated the transfer of 28 grams or more of cocaine. Here, the
indictment failed to specify the amount of cocaine. The court also concluded that a defendant cannot
consent to an amendment that cures a fatal defect; the issue is jurisdictional and a party cannot consent to
subject matter jurisdiction.

Motor Vehicle Offenses
Impaired Driving

State v. Clowers, __ N.C. App. __, __ S.E.2d __ (Dec. 20, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMS01OTAtMS5wZGY=). In an impaired
driving case, citation language alleging that the defendant acted willfully was surplusage.

Felony Speeding to Elude

State v. Leonard, __ N.C. App. __, __ S.E.2d __ (J uly 19, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMzg3LTEucGRm). An indictment
charging felonious speeding to elude arrest and alleging an aggravating factor of reckless driving was not
required to specify the manner in which the defendant drove recklessly.

Habitual Impaired Driving

State v. White, __ N.C. App. __, 689 S.E.2d 595 (Feb. 16, 2010). The trial court did not err by allowing
the State to amend a habitual impairing driving indictment that mistakenly alleged a seven-year look-back
period (instead of the current ten-year look-back), where all of the prior convictions alleged in the

9

indictment fell within the ten-year period. The language regarding the seven-year look-back was
surplusage.

Fraud & Forgery

State v. Moore, __ N.C. App. __, 705 S.E.2d 797 (Feb. 15, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC03NjQtMS5wZGY). Stating in dicta
that an indictment alleging obtaining property by false pretenses need not identify a specific victim.

State v. Guarascio, __ N.C. App. __, 696 S.E.2d 704 (J uly 20, 2010)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8wOS04ODMtMS5wZGY=). There was no
fatal variance between a forgery indictment and the evidence presented at trial. The indictment charged
the defendant with forgery of an order drawn on a government unit, STATE OF NORTH CAROLINA,
which is described as follows: NORTH CAROLINA UNIFORM CITATION. The evidence showed that
the defendant, who was not a law enforcement officer, issued citations to several individuals. The court
rejected the defendants arguments that the citations were not orders and were not drawn on a
government unit because he worked for a private police entity.

G.S. 14-3 Misdemeanor Sentencing Enhancement

State v. Blount, __ N.C. App. __, 703 S.E.2d 921 (J an. 18, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0zNTItMS5wZGY). An obstruction of
justice indictment properly charged a felony when it alleged that the act was done with deceit and intent
to interfere with justice. G.S. 14-3(b) provides that a misdemeanor receives elevated punishment when
done with deceit and intent to defraud. The language deceit and intent to interfere with justice
adequately put the defendant on notice that the State intended to seek a felony conviction. Additionally,
the indictment alleged that the defendant acted feloniously.

Habitual Felon

State v. Griffin, __ N.C. App. __, __ S.E.2d __ (J uly 19, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMjc0LTEucGRm). A habitual felon
indictment was not defective where it described one of the prior felony convictions as Possess Stolen
Motor Vehicle instead of Possession of Stolen Motor Vehicle. The defendants argument was
hypertechnical; the indictment sufficiently notified the defendant of the elements of the offense.
Moreover, it referenced the case number, date, and county of the prior conviction.

Waiver of Fatal Variance Issue

State v. Curry, __ N.C. App. __, 692 S.E.2d 129 (April 20, 2010). On appeal, the defendant argued that
there was a fatal variance between the indictment charging him with possession of a firearm and the
evidence introduced at trial. Specifically, the defendant argued there was a variance as to the type of
weapon possessed. By failing at the trial level to raise fatal variance or argue generally about
insufficiency of the evidence as to the weapon used, the defendant waived this issue for purposes of
appeal.

10

No Waiver of Fatal Defect

State v. Blount, __ N.C. App. __, 703 S.E.2d 921 (J an. 18, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0zNTItMS5wZGY). A defendant may
challenge the sufficiency of an indictment even after pleading guilty to the charge at issue.

Retrial

State v. Rahaman, __ N.C. App. __, 688 S.E.2d 58 (Jan. 19, 2010). Citing State v. Johnson, 9 N.C. App.
253 (1970), and noting in dicta that the granting of a motion to dismiss due to a material fatal variance
between the indictment and the proof presented at trial does not preclude a retrial for the offense alleged
on a proper indictment.

Superseding Indictment

State v. Fox, __ N.C. App. __, ___ S.E.2d __ (Oct. 4, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDg1LTEucGRm). Because the
defendant was never arraigned on a second indictment (that did not indicate that it was a superseding
indictment), the second indictment did not supersede the first indictment.

State v. Twitty, __ N.C. App. __, 710 S.E.2d 421 (May 17, 2011)
(http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMzIwLTEucGRm). The trial courts
failure to dismiss the original indictment after a superseding indictment was filed did not render the
superseding indictment void or defective.

LABREPORTS
1
LabReportsandtheLegalIssues
SurroundingThem
Prepared by Sarah Rackley, Forensic ResourceCounsel, andAlysonGrine, Defender Educator
February2013
GettingLabReports
SampleDiscoveryMotions:http://www.ncids.com/forensic/motions/motions.shtml
Makesureyouhaveunderlyingdata,notjustthefinalreport
Additionalitemsyouwillneedfromthelab:
o Communicationlogs
o Correctiveactions(Seeexampleinmaterials)
o Audits(Seesummarychartinmaterials)
CertificationExamresultsTheForensicSciencesActof2011requiresStateCrimeLab
analystsbecomecertified.Severalanalystsfailedtheircertificationexamsoneormore
times.ThethirdroundofABCcertificationexamsgivenmidDecember,now98.7%of
eligibleanalystsarecertified.Moreinformationisavailablehere:
http://www.ncids.com/forensic/sbi/analyst_certification/certification.shtml
Ifyouhavedifficultyobtainingcompletediscovery,notifytheADAandcontactCrimeLab
LegalCounsel:[email protected],(919)6624509ext.4400
UnderstandingLabReports
Onceyouhavereceiveddiscovery,readthelabreportstodetermine
o Whattestresultsdoyousee?
o Whattestshavebeenperformed?
o Whattestshavenotbeenperformed?
o Ask:DoIunderstandwhatthistestcanandcannotprove?
NewLabProcedures:TheStateCrimeLabputnewproceduresintoeffectforevery
sectionofthelabonSept.17,2012.
o Independentexpertshavereviewedtheseprocedures.Theircommentsareinyour
programmaterials.
o Theseproceduresreplacedtheexistingprocedures.YouMUSTrequestin
discoverytheproceduresthatwereineffectatthetimethelabanalysiswasdone
inyourcase.
o ThenewlabproceduresarepostedontheNCDOJwebsite:
http://www.ncdoj.gov/AboutDOJ/StateBureauofInvestigation/CrimeLab/ISO
Procedures.aspx
2
o Tolocatehistoricalprocedures,gototheNCIDSForensicswebsite(thoughitis
preferabletogetthemthroughdiscovery):
http://www.ncids.com/forensic/sbi/sbi.asp
o ManylocalcrimelabsarealsointheprocessofattainingISOaccreditation,which
meanstheywillalsoberequiredtohavewrittenprocedures.
o Ifyouhavequestionsabouthowtouselabproceduresinyourcase,callSarah
RackleyOlsonat9193547217.
Presumptivevs.ConfirmatoryTests:Youshoulddeterminewhetherthetestsdonein
yourcasewerepresumptiveorconfirmatorytests.
o Presumptivetests(akascreeningtests,preliminarytestsorfieldtests)can
establishthepossibilitythataspecificsubstanceispresent
o Confirmatorytestscanconclusivelyidentifyaspecificsubstance
o FreeVirtualCLE:PresumptiveandConfirmatoryForensicTests
http://www.sog.unc.edu/node/2076
LabTours:Attendoneof3upcominglabtoursDates:April26,June14andJuly12,
2013(RegionalLabtourdatesTBD).RSVP:OmbudsmantotheSBIStormieForte
[email protected]
WorkingwithExperts
DatabaseofExpertsprovidesinformationonover300stateanddefenseforensicscience
experts:http://www.ncids.com/forensic/experts/experts.shtml
GuidetoWorkingwithExperts(inmaterials)
o Vettinganexpert
o Referralquestions
o Questionstoaskduringyourfirstconversationwiththeexpert
AdmissibilityofLabReportsandExpert
Testimony
ConfrontationClauseUnder6thAmendmenttotheUSConstitution,theaccusedhas
righttobeconfrontedbywitnessagainsthim.
o Crawfordv.Washington(2004)Testimonialhearsaystatementbywitnesswhois
notsubjecttocrossattrialisnotadmissibleUNLESS:thewitnessisunavailable
andtherewasaprioropportunityforcross.
o MelendezDiazv.Massachusetts(2009)forensiclaboratoryreportsare
testimonialandthussubjecttoCrawford.
3
o NoticeandDemandStatutes(N.C.Gen.Stat.9095)theStatenotifiesDefendant
incertaintimeperiodofintenttointroducereport.Defendanthastimeperiodto
filewrittenobjectionwithcourtanddemandthatanalystappear.
IfDefendantdoesnotobject,waivestherightandreportcomesinwithout
theanalystbeingpresentforcross.
o SubstituteAnalystNCcourtshavefounduseofasubstituteanalystviolates
Defendantsrighttoconfrontwheretestifyinganalystissimplyreadingor
summarizingreportofpersonwhodidthetesting.Statev.Locklear,363N.C.438
(2009).
o Williamsv.Illinois(2012)Fractureddecision.Takehomemessage:Objectifyou
havesubstituteanalystcaseandprosecutorarguesreportsareadmissiblebecause
theyarenotbeingofferedforthetruth,butarebeingofferedasbasisofexpert
opinion.
SeeJessicaSmithsBulletin:
http://sogpubs.unc.edu/electronicversions/pdfs/aojb1203.pdf
AdmissibilityofExpertTestimony(Rule702(a))
o Judgeasgatekeeper.Isthescientificevidencerelevantandreliableorisitjunk?
Bepreparedtoconductrigorousscrutinyofexpertstochallenge
admissibility,viadiscovery,motions,andvoirdirepractices
http://ncforensics.wordpress.com/2011/08/17/legislativechange
regardingexperttestimony/
FreeOnlineForensicTrainingAvailable
Therearelinkstoover100freeonlinetrainingsinthetrainingsectiontheIDSForensicswebsite.
Topicsincludecrimesceneinvestigation,DNAevidence,childabuse,toxicology,workingwith
experts,andmanymore.Someofthetrainingorganizationsrequireyoutoregisterbeforeyou
takethetraining,butitjusttakesafewminutestosignup.
WaystoStayInformed:
Website:http://www.ncids.com/forensic
Blog:http://ncforensics.wordpress.com/
Twitter:@IDSforensics
Availableforcaseconsultation:
o SarahRackleyOlson
[email protected]
9193547217

- 1 -
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 09 CRS XXXX

STATE OF NORTH CAROLINA )
)
vs. ) MOTION FOR DISCOVERY
) (LABORATORY/SCIENTIFIC
DEFENDANT ) EVIDENCE)
)
Defendant. )
____________________________________________________________

NOW COMES the Defendant, by and through the undersigned counsel, ____,
and hereby moves this Honorable Court, pursuant to the Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution; Article I 19 and 23 of the
North Carolina Constitution; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963) and its progeny; N.C.Gen.Stat. 15A-903(a)(2); State v. Cunningham, 108
N.C.App. 185, 423 S.E.2d 802 (1992); State vs. Dunn, 154 N.C.App. 1, 571 S.E.2d 650
(2002); State v. Fair, 164 N.C.App. 770 (2004); and State v. Edwards, 174 N.C.App.
490, 621 S.E.2d 333 (2005), for an Order requiring the State to disclose to the defense the
underlying basis for the opinions of any witnesses the State intends to call to present
evidence of a scientific nature in these matters. In support of the foregoing Motion, the
Defendant would show unto the Court as follows:

1. Undersigned Counsel was appointed to represent the Defendant in J uly,
2010 on charges of Second Degree Murder, Felony Aggravated Serious
Injury by Motor Vehicle, Felony Hit and Run, DWI, and Habitual Felon in
the above file numbers.

2. Based upon communications with the prosecution in this matter, it is
known that these matters are set for trial beginning DATE.

3. On DATE, the prosecution filed a Notice of Intent to Introduce Expert
Testimony in 09 CRS XXXX, providing the defense with notice of the
States intent to introduce the expert testimony of AGENT, in the area of
forensic chemistry, employed by the North Carolina State Bureau of
Investigation.

4. Upon information and belief, AGENT is the same individual who tested
the defendants blood for the presence of ethyl alcohol and drugs.

5. The prosecution has previously provided a laboratory report of the North
Carolina State Bureau of Investigation dated DATE in which AGENT

- 2 -
concluded that the Defendants blood contained .XX grams of alcohol per
100 milliliters of whole blood, and confirmed the presence of 11-nor-
delta-9-tetrahydrocannabinol-9-carboxylic acid (THCA).

6. Pursuant to the legal authorities cited in the preamble of this Motion, the
Defendant hereby moves the Court to enter and Order commanding the
prosecution to provide the following information within ten days prior to
the trial of these matters:

a. Any and all scientific conclusions the State intends to offer at trial;

b. Any and all bases for said scientific conclusions;

c. Any and all procedures and tests used to reach said conclusions;

d. Any and all data generated by the procedures and used to reach
said conclusions;

e. Any and all procedures the States expert should have used to
reach said conclusions; such procedures generally being termed
protocols.

f. Any and all information concerning how the samples (evidence)
were collected and handled;

g. Any and all information concerning the chain of custody and
transfer of all evidence;

h. Any and all laboratory receiving records (records documenting the
date, time, and condition of receipt of the evidence in question;
laboratory assigned identifiers; storage location);

i. Any and all information concerning procedures for sub-sampling
and contamination control;

j. Copies of all technical procedures in effect at the time the test was
performed during sample screening and confirmation, including,
but not limited to: sample preparation, sample analysis, data
reporting and instrument operation;

k. Copies of proficiency results and testing for each analyst and
technician responsible for preparation or analysis of subject
specimens, including, but not limited to: raw data and reported
results, target values and acceptance ranges, performance scores,
and all related correspondence;

- 3 -

l. Copies of all documentation related to corrective actions for each
analyst and technician responsible for preparation of analysis of
subject specimens;

m. Copies of the corrective action report and corrective action
tracking, quality assurance review tracking, non-conformity
tracking, and unexpected results for the Drug Chemistry Section
and all sections of the State Crime Lab;

n. Copies of certification exam results for each analyst, technician
and reviewer responsible for preparation or analysis of subject
specimens or review of analysis, including, but not limited to:
each letter specifying the results of the exam and a list of topics
where the analyst missed more than 20% of the questions (the
second page of the second letter from the American Board of
Criminalistics);

o. Copies of any ISO Deviation, Deviation Request Form, or
documentation related to current or archived deviations from lab
procedures;

p. Any and all information related to traceability documentation for
standards and reference materials used during analysis, including
unique identifications, origins, dates of preparation and use,
composition and concentration of prepared materials, certification
or traceability records from suppliers, assigned shelf lives and
storage conditions;

q. Any and all information related to sample preparation records,
including dates and conditions of preparation, responsible analyst,
procedural reference, purity, concentration and origins of solvents,
reagents, and control materials prepared and used, samples
processed concurrently, and extract volume;

r. Copies of all bench notes, log books, and any other records
pertaining to case samples or instruments; records documenting
observations, notations, or measurements regarding case testing;

s. Any and all information related to instrument run logs with
identification of all standards, reference materials, sample blanks,
rinses, and controls analyzed during the day/shift with subject
samples (as appropriate run sequence, origins, times of analysis
and aborted run sequences);

t. Copies of any and all records on instrument operating conditions

- 4 -
and criteria for variables, including but not limited to: GC
column, instrument file identification, tuning criteria, instrument
performance check, initial calibration, continuing calibration
checks, calibration verification;

u. Records of instrument maintenance status and activities for
instruments used in the testing of the substance at issue in this
case, documenting routine as-needed maintenance activities in the
four weeks prior to the testing of the substance at issue in this case;

v. Raw data for complete measurement sequence (opening and
closing quality control included) that includes the subject samples.

w. A description of the library used for spectral matches for the
purpose of qualitative identification of controlled substances,
including source(s) and number(s) of reference spectra;

x. Copies of records documenting computation of the SBI Labs
theoretical production yield, including the basis for the
computation and the algorithm used;

y. Copies of the procedures for operation and calibration checks of
analytical balance used to weigh the substance at issue in this case;

z. Copies of results of calibration checks and documentation of mass
traceability for gravimetric determinations;

aa. Copies of results of contamination control surveys for trace level
analytes relevant to test methods and the time of analysis,
including sample design and analytical procedures;

bb. Copies of any and all records and results of internal review of
subject data;

cc. Copies of any and all method validation records documenting the
laboratorys performance characteristics for qualitative
identification and quantitative determinations of the controlled
substances, including, but not limited to, data documenting
specificity, accuracy, precision, linearity, and method detection
limits;

dd. Copies of the SBI Labs Quality Manual in effect at the time the
subject samples were tested as well as the laboratorys most recent
Quality Manual (i.e., the document(s) that describe the laboratorys
quality objects and policies);

- 5 -
ee. Copies of the SBI Labs technical or operational procedures in
effect at the time the subject samples were tested (often termed
Standard Operating Procedures, for analytical laboratory
operations) as well as the laboratorys most recent technical or
operational procedures for analytes detected in subject samples;

ff. A copy of the NC SBI labs ASCLD-LAB application for
accreditation, and most recent Annual Accreditation Review
Report;

gg. A copy of the statement of qualifications of each analyst and/or
technician responsible for processing case samples to include all
names, locations, and jurisdictions of cases in which said personnel
testified concerning the same substances found in the present case;

hh. A copy of the NC SBI labs ASCLD-LAB on-site inspection
report, as well as any reports of the on-site inspections by any
other testing laboratory audit organization;

ii. A copy of any and all internal audit, staff inspection, or any other
inspection report generated during the period the subject samples
were tested;

jj. A list of capital instrumentation in the laboratory at the time
subject testing was performed, including manufacturer, model
number, and major accessories;

kk. A copy of the Drug Chemistry Section Procedures Manual; and

ll. A copy of the Drug Chemistry Section Training Manual.

7. The requested information/documentation is critical to ensuring that the
Defendants rights to effective assistance of counsel, confrontation and
cross-examination, and due process are provided.

8. At trial, the State intends to introduce expert opinion regarding the
substance alleged to be cocaine. As the States expert has performed
experiments and tests on the substance alleged to be cocaine (in order to
render opinion that said substance is, in fact, cocaine), the Defendant
would be prejudiced in the trial of these matters if the methods and
procedures used by the expert to reach said opinion were not disclosed to
the defense.

9. In order to be able to prepare for cross-examination of the States expert,
and to prepare for cross-examination of the States expert, the Defendant
must have access to the information outlined in paragraphs 10(a hh)

- 6 -
above.

10. If the Defendant is not given access to the information outlined in
paragraphs 10(a hh) above, the lack of such access will result in a denial
of the Defendants rights to effective assistance of counsel, confrontation
and cross-examination, and due process of law.

11. In State v. Cunningham, 108 N.C.App. 185, 423 S.E.2d 802 (1992), the
Court of Appeals, in holding that defendants are entitled to pretrial
discovery of not only conclusory lab report, but also of any tests
performed or procedures utilizedto reach such conclusion, the Court
also held the scope of discovery to encompass the materials necessary to
enable a defendant to determine that the tests performed were appropriate
and to become familiar with the test procedures. (citing 2 A.B.A.
Standards for Criminal J ustice, Commentary to Standard 11-
2.1(a)(iv)2d.ed. 1980 & Supp. 1986).

12. In State v. Dunn, 154 N.C.App. 1, 571 S.E.2d 650 (2002), the defendant
argued that the trial court erred in failing to provide defendant discovery
information pertaining to laboratory protocols, incidences of false positive
results, quality control and quality assurance, and proficiency tests of the
State Bureau of Investigation laboratory

13. In Dunn, the Court of Appeals said the defendant was entitled to such
information and ordered a new trial.

14. In order to ensure that the Defendants constitutional rights are afforded,
the Court should order the State to disclose to the defense all of the
information outlined in paragraphs 10(a hh) above.

WHEREFORE, the Defendant respectfully prays unto this Court for the following
relief:

1. That the Court enter an Order requiring the prosecution to provide the
defense with the information outlined in paragraphs 10 (a hh) above; and

2. For such other and further relief to which the Defendant may be entitled
and which the Court may deem just and proper.

This the ____ day of _________________, 2010.

By: ________________________________

- 7 -

NORTH CAROLINA FILE NUMBER: 09-CRS-______
PITT COUNTY
FILM NUMBER: ______________
IN THE GENERAL COURT OF J USTICE
STATE OF NORTH CAROLINA }
}
vs }
}
LAURA J ANE DOE, }
Defendant }
______________________________________________________________________________
MOTION FOR INDEPENDENT TESTING
______________________________________________________________________________
NOW COMES the defendant, by and through counsel, and respectfully moves this
Honorable Court for the entry of an Order requiring the State to produce for the undersigned the
complete records made by any scientists, forensic experts, or other experts who either performed
or are responsible for the tests or experiments performed on all the items of physical evidence,
including such information as: (1) Evidence involved; (2) Evidence tested; (3) Tests performed;
(4) Results of each specific test; (5) Procedure for each test: laboratory worksheets, bench
notes, and copies of all said memoranda worksheets, notes, and records kept by said experts;
and (6) any such other information related to any forensic testing on alleged marijuana seized by
the Pitt County Sheriff Department.
1. The defendant was indicted on manufacturing of marijuana and possession of
drug paraphernalia.
2. This Court has not set any deadlines for the delivery of discovery, nor any dates
for the hearing of pretrial motions as contemplated by G. S. 7A-49.4. The defense was only
supplied with limited discovery.
3. To the best of the belief and knowledge of defense counsel, law enforcement
authorities chose not to forward the alleged marijuana plant or any drug paraphernalia for
forensic testing.
4. The Defense requests to have said items inspected or tested by the defense
experts.
5. Defendant, by counsel, contends that she is entitled to production of same prior to
trial pursuant to N.C.G.S. 15A-902, et. seq., and 15A-267, in sufficient time to enable her to
meaningfully examine said items and test them to prepare for trial. Failure to grant the
defendants motion would violate the defendants rights to Due Process of Law under the Fifth
and Fourteenth Amendments to the United States Constitution; Article I, Sections 18, 19, and 23,
of the Constitution of North Carolina; and effective assistance of counsel, in violation of the
Sixth Amendment to the United States Constitution; Article I, Sections 19 and 23 of the
Constitution of North Carolina; and his discovery rights under N.C. Gen. Stat. 15A-903.
6. Defendant requests the Court to order that the Pitt County Sheriffs Department to
provide Defendant any evidence related to this case for testing, to be turned over to a private
investigator for the defense so that said items can be delivered to and inspected and tested by the
defenses independent expert to confront, challenge, or rebut the States evidence in this case.
After said inspections and testing the defenses private investigator will collect said items from
the defense expert and deliver them back to the Pitt County Sheriffs Department.
WHEREFORE, the undersigned prays that this Court will enter such Orders as are just
and proper with respect to production of the above-mentioned items and the inspection and
independent testing by the experts appointed to assist the defense.
Respectfully submitted this the ____ day of May, 2010.
________________________
Attorney for Defendant
CERTIFICATE OF SERVICE
This is to certify that on this date the attached pleading or paper was served upon the
State of North Carolina by hand delivery or by mailing a copy of said motion to Assistant
District Attorney, Brian DeSoto, 3
rd
Floor, Courthouse, 100 W. 3
rd
St., P.O. Box 8185,
Greenville, North Carolina 27835-8185.
This the ____ day of May, 2010.
______________________
Attorney for Defendant
Motion for independent testing
COUNTY OF GUILFORD XX CRS XXXX

)
vs. ) MOTION TO EXCLUDE
) LATENT FINGERPRINT
DEFENDANT ) TESTIMONY
)
Defendant. )
________________________________________________________________________

NOW COMES the Defendant, by and through the undersigned counsel, and
hereby moves this Honorable Court, to exclude latent fingerprint testimony in this case
because the relevant scientific community does not accept that latent fingerprint analysis
can reliably and accurately demonstrate a connection between a latent print and a specific
individual. This motion is based on State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995),
Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004), N.C. Gen. Stat 8C-
1, Rule 702, N.C. Gen. Stat 8C-1, Rule 403 and the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution; Article I 19 and 23 of the North
Carolina Constitution.

In support of the motion, the Defendant shows the following:
1. On February 18, 2009, the National Academy of Sciences published a watershed
report, concluding that no forensic method, with the exception of DNA analysis,
has rigorously shown to have the capacity to consistently, and with a high degree
of certainty, demonstrate a connection between evidence and a specific individual
or source. National Research Council, National Academy of Science,
Strengthening Forensic Science in the United States: A Path Forward, [hereinafter
2009 NAS Report], 7. The report is unequivocal: there is no existing research that
demonstrates that latent fingerprint identification is valid.

2. The Supreme Court of North Carolina in State v. Ward, 364 N.C. 133 (2010) took
note that the field of forensic science has come under acute scrutiny on a
nationwide basis and recognized the 2009 National Academy of Sciences Report
as a landmark report. Id. at 141 (holding that a methodology of identifying pills
by visual inspection was not sufficiently reliable to identify the substances at
issue).

3. Admissibility of expert testimony in North Carolina is determined by a three-part
test: (1) Is the experts proffered method of proof sufficiently reliable as an area
for expert testimony? (2) Is the witness testifying at trial qualified as an expert in
that area of testimony? (3) Is the experts testimony relevant? Howerton v. Arai
Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

4. Where, however, the trial court is without precedential guidance or faced with
novel scientific theories, unestablished techniques, or compelling new
perspectives on otherwise settled theories or techniques, the trial court must look
to other indices of reliability to determine whether the experts proffered
scientific or technical method of proof is sufficiently reliable[.] Howerton, 597
S.E.2d at 687 (quoting State v. Pennington, 393 S.E.2d 487, 453 (N.C.1990)).

5. The technique used in this case by examiner ________ to examine prints made by
friction ridge skin (known as the ACE-V technique) is not a novel technique. It
has been described in literature since 1959. 2009 NAS Report at 137. However,
the 2009 NAS Reports determination that following the steps of ACE-V does
not imply that one is proceeding in a scientific manner or producing reliable
results represents a compelling new perspective on a technique that was
previously relied upon by courts. 2009 NAS Report at 142.

6. Among the criticisms of the 2009 NAS Report are that ACE-V does not guard
against bias; is too broad to ensure repeatability and transparency; and does not
guarantee that two analysts following it will obtain the same results. 2009 NAS
Report at 142.

7. The 2009 NAS Report reflects the current view of scientists significant both in
number and expertise. The National Research Council Committee reviewed
studies related to forensic disciplines, conducted independent research, heard
testimony from experts in the field, and provided specific recommendations to
address issues facing the forensic science community. 2009 NAS Report at ix-xx.

8. The 2009 NAS Report cited a thorough analysis of the ACE-V method and its
unambiguous conclusion was: We have reviewed available scientific evidence
of the validity of the ACE-V method and found none. Id. at 143 (quotation and
citation omitted).

9. Rule 702 provides that [i]f scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion. Allowing an expert to
testify to opinion evidence that is not based on a reliable scientific of technical
method will not assist the trier of fact to understand the evidence. Instead, it will
only serve to confuse and mislead.

10. Furthermore, Rule 403 guards against the introduction of such unreliable
evidence. Rule 403 provides as follows: Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.
Any probative value of the fingerprint evidence is substantially outweighed by the
dangers of unfair prejudice, confusion of the issues, and misleading the jury given
the unreliability of such evidence.

WHEREFORE, counsel for Defendant respectfully requests:

1. That the Court hold a pre-trial hearing in this matter; and

2. That this Honorable Court issue an Order excluding the fingerprint evidence.

RESPECTFULLY SUBMITTED this the _____ day of __________, 2011.


1
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF J USTICE
COUNTY OF ________

FILE NO. ______

STATE OF NORTH CAROLINA ) MOTION TO PRESERVE
) EVIDENCE
v. )
)
__________ )
)

NOW COMES Defendant, by and through counsel, and respectfully moves this
Court to issue an order requiring all prosecutorial and law enforcement agencies involved
in the investigation of _________ and related offenses to preserve and remain intact and
not to destroy or alter any evidence, tangible object, or other information relating in any
manner to this case. This includes the complete files of all prosecutorial and law
enforcement agencies, including any documents, audio and/or video recordings, and
investigative reports of potential witnesses, co-defendants, and/or informants who have
been involved in the investigation of this case. This includes preservation of rough
notes and audio and/or video recordings, whether or not those notes or recordings form
the basis of a formal typewritten report, as well as other products that could be classified
as work product. Additionally, Defendant moves that this order also apply to all
prosecutorial and law enforcement agencies involved in the investigation of Defendant
related to any other offenses which the State is contemplating using or attempting to use
at Defendants trial. Defendant is entitled to the complete files of all law enforcement
and prosecutorial agencies involved in the investigation of the crimes committed or the
prosecution of the defendant. N.C. Gen. Stat. 15A-903. Preservation of these files and
evidence is required under the Sixth, Eighth and Fourteenth Amendments to the United
2
States Constitution, Article I, 19, 23 and 27 of the North Carolina Constitution and
under the general interests of justice.
This the _____ day of __________, 200_.

Attorney Name
N. C. State Bar No. _______
Address
Tel:
Fax:
3


I certify that I served a copy of the foregoing Motion to Preserve States Files by first
class mail upon:

Name
District Attorney
Address

This the ___ day of ____________, 200_.

______________________________
Name

FILE NO:

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

_____________ COUNTY SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA

v.

____________________,
Defendant.
)
)
)
)
)
)

NOTICE OF OBJ ECTION
PURSUANT TO N.C. GEN.
STAT. 90-95(g) AND
(g1)

NOW COMES the defendant by and through undersigned counsel and gives notice to the State
that he OBJ ECTS to the introduction by the State of certain documents entitled North Carolina
Bureau of Investigation Department of J ustice Western Laboratory Report dated ___________,
North Carolina State Bureau of Investigation Request for Examination of Physical Evidence,
undated, and Case #W2010____ - Chain of Custody Report, undated, as evidence of the
identity, nature and quantity of the matter analyzed in the present case and of the established
chain of custody regarding said evidence.

The defendant objects to introduction into evidence of the above-mentioned lab report and chain
of custody statement pursuant to the Sixth Amendment to the United States Constitution, Article
I, 23 of the North Carolina Constitution, Melendez-Diaz v. Massachussetts, 129 S. Ct. 2527
(2009), and N.C. Gen Stat. 90-95(g) and (g1).

This the ____ day of February, 2012.
___________________________
ATTORNEY FOR DEFENDANT

I hereby certify that a true copy of the foregoing was served on ______ County District
Attorneys Office by hand delivery.
This ___ day of February, 2012.
_________________________
ATTORNEY FOR DEFENDANT
By: ___________________________
BY RYAN NILAND | JANUARY 4, 2013 12:28 PM | EDIT
This is the first in a three-part series on lab accreditation, analyst certification, and ISO-compliant lab procedures
by Ryan Niland.
Understanding the distinctions between lab accreditation and analyst certification can be important when
critically examining forensic analyses. Although both processes relate to quality assurance for forensic analysis,
the term accreditation generally applies to laboratories as a whole, while certification applies to individual analysts
and technicians.
Accreditation refers to a recognition process for laboratories that meet certain standards for management,
operations, equipment, and security. Four major accrediting bodies offer accreditation programs for forensic labs
in the United States (ASCLD/LAB, FQS, A2LA, and ABFT well explain more about these organizations in Part
2), and each body has its own requirements. Lab accreditation is generally a voluntary process, but nine states
(including North Carolina) now require their labs to achieve some forms of accreditation. Although the
accreditation process is intended to promote standardization and quality control, recent scandals at crime labs in
North Carolina, San Francisco, and elsewhere have shown that lab accreditation does not always ensure sound
science.
Certification refers to a credentialing process for individual analysts and technicians who meet certain standards
for education, training, and experience. Innumerable organizations offer certification for forensic analysts in
fields ranging from toxicology to forensic art. Each certifying agency has its own requirements for education,
training, and experience, and while some certification programs are rigorous, others can be little more than
diploma mills. For example, one organization offers certification as a forensic consultant to anyone who watches
a 90-minute video and passes a short, multiple-choice test. The Forensic Specialties Accreditation Board (FSAB)
monitors the certification process for many of these organizations. A good starting point for determining whether
a forensic certification is of merit is to determine whether the certification is offered by an FSAB-accredited
organization. More information about the certifications held by NC State Crime Laboratory analysts is available
here.
Although most lab accreditation programs do not require that analysts be certified, the FBIs Quality Assurance
Standards (QAS) do require some forms of certification for DNA analysts at labs that participate in the CODIS
national DNA database.
Part 2 of this series will explain how a lab becomes accredited and some potential shortcomings in that process.
Share this:
Part 1: Whats the difference between accreditation and certification? | Fo... http://ncforensics.wordpress.com/2013/01/04/part-1-whats-the-difference...
1 of 1 1/8/2013 3:59 PM
This is the second in a three-part series on lab accreditation, analyst certification, and ISO-compliant lab
procedures by Ryan Niland.
Several major organizations offer accreditation services for forensic labs in the United States. The American
Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is by far the largest
accrediting body for forensic labs, followed by Forensic Quality Services (FQS), the American Association for
Laboratory Accreditation (A2LA), and the American Board of Forensic Toxicology (ABFT).
Labs seeking accreditation generally start the process by performing an internal organizational audit. If the lab
believes that its policies, procedures, equipment, and other characteristics conform to the required standards, the
lab submits a report to the accrediting body. The accrediting body then sends a team of external examiners to
confirm the internal audits findings. The examiners use a checklist to ensure that the labs policies and
procedures meet the accrediting bodys requirements, and may also review analysts case files for consistency with
the requirements. The lab is given an opportunity to respond and correct any deficiencies reported by the
examiners before it receives accreditation. The SBI labs ASCLD/LAB Inspection Reports can be viewed online
here. Accreditation typically lasts for two to five years before the lab must be re-inspected.
In addition to the accreditation offered by the major accrediting bodies, the FBI maintains separate Quality
Assurance Standards (QAS) for all labs that participate in the CODIS national DNA database. (Click here to read
the specific requirements for these laboratories.) Labs that participate in the database are subject to annual
audits, and the North Carolina State Crime Labs website contains links to their QAS audit reports (under the
heading DAB Audit Reports). Appendix A to each report contains a short summary of all problems uncovered by
the audit and the labs responses, if any. Appendix D to each report details the certifications of the labs DNA
technicians.
Although courts have assumed previously that work performed in accredited labs is reliable, an increasing body of
evidence shows that accreditation provides little assurance that forensic analyses are carried out with sound
scientific methodology. Investigators have uncovered failures in at least 28 accredited laboratories since 2005,
including mis-identification of fibers, DNA contamination, mix-ups of physical evidence, expired chemicals, and
false calibration dates.
One of the most notable of these failures occurred in the NC State Bureau of Investigations (SBI) serology lab,
where false and misleading lab reports tainted at least 230 cases over a 16-year period. The SBI lab was accredited
by ASCLD/LAB five times during this period; none of its inspectors detected the widespread problems with the
labs policies and procedures.
Similar failures have been reported in other accredited labs. ASCLD/LAB re-accredited the US Army Criminal
Investigation Command in 2006 even after learning that the lab provided inadequate supervision to a DNA
analyst who falsified reports, cut corners, and found DNA in samples where none existed. ASCLD/LAB accredited
San Franciscos crime lab in 2005, only to have the lab shut down when it was discovered that an analyst had been
stealing drugs from the lab. External audits revealed heavy case loads for lab workers and that technicians were
having trouble maintaining the chain of custody for evidence.
Part 2: The Lab Accreditation Process | Forensic Science in North Carolina http://ncforensics.wordpress.com/?p=833&preview=true
1 of 2 1/8/2013 3:59 PM
Several factors may help explain the failure of ASCLD/LAB and other accrediting agencies to detect major
deficiencies in forensic labs. First, examiners review a very small number of casestypically five per analystto
confirm compliance, and the cases are selected by supervisors rather than chosen at random. Additionally,
examination teams consist of forensic analysts from other labs, so there is some concern that these individuals
may be reluctant to report problems for fear of reprisals against their own labs when they are audited. Although
ASCLD/LAB accepts complaints, investigations into these issues are kept confidential. Finally, labs are given
advance notice of when accreditation inspections will occur, rather than subjected to surprise inspections.
Part 3 of this series will explain ISO accreditation for forensic labs. Part 1 of this series is available here.
Part 2: The Lab Accreditation Process | Forensic Science in North Carolina http://ncforensics.wordpress.com/?p=833&preview=true
2 of 2 1/8/2013 3:59 PM
This is the third in a three-part series on lab accreditation, analyst certification, and ISO-compliant lab
procedures by Ryan Niland.
In response to concerns about the failures of the North Carolina State Crime Laboratory (formerly known as the
SBI lab), North Carolina passed the Forensic Sciences Act (FSA) in 2011. Among other things, the FSA requires
that for a report to be admissible in court, it must be produced by a lab accredited by an accrediting body which is a
signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement for
Testing.
ASCLD/LABs traditional accreditation program, sometimes referred to as its Legacy Program, does not use
ILAC standards. Consequently, in September 2012, the North Carolina State Crime Laboratory adopted and
posted new lab procedures on its website in order to seek additional lab accreditation according to ILAC standards.
ILAC requires forensic laboratories to follow procedures set by the International Organization for Standardization
(ISO).
ISO is an organization that develops international standards in many areas, including management, food safety,
and nearly all mass-produced products. Forensic labs seeking ISO accreditation must follow the procedures in ISO
17025, which contains general requirements for all testing and calibration laboratories. ILAC has produced
guidelines (ILAC G19) for laboratories applying ISO 17025 procedures in a forensic context. ISO 17025 and ILAC
G19 set out general principles that labs must adhere to, but each lab that seeks ISO accreditation will have its own
procedures interpreting these standards.
All state lab tests performed after September 17, 2012 should follow the new lab procedures. Analysts at the lab
report that the greatest procedural changes occurred in the Forensic Biology/DNA and Drug Analysis/Toxicology
sections, as well as in how documentation is kept. The lab procedures for tests administered prior to September
17, 2012 have been removed from the labs website. Attorneys should contact the lab to obtain copies of the older
procedures, or they can contact the Forensic Resource Counsel for assistance.
The North Carolina State Crime Lab accepted public comment on the new lab procedures, and independent
experts provided a number of critiques regarding the new procedures. The critiques included questions about the
labs forensic biology testing procedures, DNA analysis interpretation guidelines, drug sampling protocols, and
results statements used in fingerprint comparisons. The Forensic Resource Counsel has copies of many of these
comments and can provide them to you and discuss with you how they may relate to the analysis performed in
your case.
Part 1 of this series is available here. Part 2 is available here.
Part 3: ISO and the NC Forensic Sciences Act of 2011 | Forensic Science ... http://ncforensics.wordpress.com/?p=842&preview=true
1 of 1 1/8/2013 4:00 PM

GUIDE TO WORKING WITH EXPERTS
Preliminary Considerations:
Review your case, client's records (medical, educational, etc.), and discovery prior
to contacting experts. This will help you determine exactly what type of expert
assistance is needed and have a more productive conversation with an expert.
Do not engage a mental health expert before obtaining substantial social history
records (click here for a list of potential records to collect), unless the client is
floridly psychotic upon you entry into the case. See IDS Policy on the Effective
Use of Mental Health Experts in Potentially Capital Cases.
Educate yourself on the issues. Consult the IDS Forensics website for information
on topics of forensic science, such as DNA, firearms, fingerprints, death
investigation, etc. Scholarly articles are available such as Google Scholar and
PubMed.
Do you need an expert?
o Is the forensic evidence adverse to the defense theory of the case?
o Do you need evidence re-tested?
o Are you critiquing the state's testing of the evidence?
o Even if the State is not using an expert, consider whether there are
affirmative uses of experts that would support your theory of the case,
such as crime scene experts, use of force experts, or mental health experts.

Finding an Expert:
Don't wait until the last minute - your desired expert may not be available. Any
expert will need time to review your case prior to forming an opinion.
Consider consulting with Sarah Rackley Olson, Forensic Resource Counsel or
Elaine Gordon, Trial Resource Counsel for additional ideas about what type of
expert to use.
Know what particular expertise you need before you start making phone calls:
i.e., rather than looking for a "DNA expert," consider whether you need an expert
on DNA mixtures, an expert who can challenge contamination, or an expert who
can challenge the statistical computation.
Consider the role of the expert: Do you need an expert to assist in evaluating the
quality of the evidence? To explain the science to you or to the jury? Do you need
an expert to develop mitigation evidence or to establish a defense such as self-
defense or diminished capacity? Will assistance require access to a laboratory?
Can a professor or academic fulfill the role or do you need a practicing analyst or
scientist? Is the expert willing to testify?

Research the Expert:
You should research your potential expert as thoroughly as you would research a
State's witness that you are preparing to cross-examine.
Review his/her CV. Do not assume that just because the expert has been used
frequently that he/she has been properly vetted.
Utilize disciplinary boards if available. If an expert lists a particular license or
certification, see if that organization posts disciplinary information online.
Ask the expert about any certifications or professional qualifications attempted -
has the expert taken any certification exams or other professional exams that
he/she has not passed? This website can be used to check to see whether an MD is
certified in a particular specialty.
Seek references on listservs, with the IDS Forensic Resource Counsel, NACDL
Resource Center, American Academy of Forensic Sciences (AAFS), other
lawyers, other experts and competitors, universities, and publicly-funded
laboratories.
Search LexisNexis and/or Westlaw for cases in which the expert testified.
Guide to your first conversation with the expert:
Be able to explain to the expert what work you need performed, including specific
referral questions you would like addressed if working with a mental health
expert. Never ask a mental health expert simply to evaluate your client without
providing specific guidance. Do not assume that the expert already knows what
constitutes a potential defense or mitigating factor. Sometimes an expert who has
not received proper guidance will tell an attorney that his or her evaluation has
turned up nothing useful, when in fact the expert simply does not have the legal
expertise to know what is useful and what is not.
Get the expert to provide you with a copy of his/her CV.
Discuss with the expert anticipated hours of work needed, any re-testing needed,
any travel required in order to prepare a request for adequate funding. Discuss
AOC's rate schedule (see p. 2), and prepare justification if the expert requires a
deviation from the rate schedule.
Discuss any potential conflicts with the expert due to co-defendants, scheduling,
or any other professional or personal matter that would adversely affect the
expert's work/testimony in the case.
Verify that your expert will be able to testify. Do not assume that testimony will
not be needed or promise your expert that testimony will not be needed.
Your expert will need lab reports and the underlying data in order to analyze the
evidence.
Communication
o Can your expert explain his/her conclusions clearly and understandably?
o Consider non-verbal communication: arrogance, bias, appearing
defensive, organized, prepared, etc.
Considerations to discuss with expert
o Position currently held.
o Description of the subject matter of the expert's specialty.
o Specializations within that field.
o What academic degrees are held and from where and when obtained.
o Specialized degrees and training.
o Licensing in field, and in which state(s).
o Length of time licensed.
o Length of time practicing in this field.
o Board certified as a specialist in this field.
o Length of time certified as a specialist.
o If certifications/proficiency tests/etc have been attempted, history of
results.
o Positions held since completion of formal education, and length of time in
each position.
o Duties and function of current position.
o Length of time at current position.
o Specific employment, duties, and experiences.
o Teaching or lecturing in the relevant field, dates and location of teaching.
o Publications in this field and titles.
o Membership in professional societies/associations/organizations, and
special positions in them.
o Requirements for membership and advancement within each of these
organizations.
o Honors, acknowledgments, and awards received by expert in the field.
o Who is considered "the best" in the field?
o Number of times testimony has been given in court as an expert witness in
this field. (Case names and transcripts, if available.)
o How has the expert's testimony been treated in the past? Did the expert
appear balanced, knowledgeable, and credible? Has the expert ever not
been qualified as an expert? Why?
o Is there any personal or professional information that the attorney should
be aware of that may be used as impeachment material or to disqualify this
expert?
o Availability for consulting to any party, state agencies, law enforcement
agencies, defense attorneys.

DNA Advisory Board Quality Assurance Audits of SBI DNA Section (1999-2010)

This chart is a summary of the most significant findings of the audits posted on the NCDOJ website. The FBI Director requires that these minimum quality
assurance standards be met for participation in the National DNA Index System. An external audit to assess compliance with these standards is required every two
years. The criteria that are currently used in these audits can be viewed here. The SBI lab has completed these audits on an annual basis since 1999.

Despite findings of non-compliance during most audits, the lab has passed the audit each year. The purpose of this document is to summarize the annual findings.
When evaluating the DNA evidence in a case, attorneys should consider the findings for the relevant year, as well as for the preceding and following years as it is
possible that a practice may have gone undetected by certain auditors or may have remained an issue after the year it was reported in the audit.

Year Topic Finding
#
Finding Explanation/Case relevance
1999 Training 5.1.3 Potential budget constraints are preventing personnel from
attending external training seminars. In order to comply with the
requirement for continuing education and training, it is
suggested that those personnel who attend external meetings
be required to present information to the Section upon their
return to work. An outline of the presentation and attendance
can be maintained as documentation of an in-house training
session. Another possible way to comply would be to conduct
J ournal Article Review sessions.
Lack of training can be a source of cross
examination.
Attorneys should request in discovery the articles
that analysts are relying on to reach conclusions.
SR has copies of several literature references
used by biology section.
1999 Deviations from
protocol,
Validation of
procedures
8.1.3.4 Auditors noted possible deviations from manufacturers
protocols for the PowerPlex 1.1 and questioned whether
deviations had been validated.
SBI responded that all deviations had been
validated.
Consider further exploration of this issue if a
deviation is suspected. How were these
deviations validated? Were deviations discussed
with the manufacturer?
SR has copies of PowerPlex user manuals. They
are also available online.
1999 Lack of
protocol,
Interpretation
issues
9.1.2 It would be clearer to add a disclaimer to the Technical Manual
that STR Call is not required but is optional for casework.
This implies there are no standards for interpretation
and that interpretation is left up to the individual
analyst. Could lead to inconsistent results and
improper interpretation because there are no
guidelines for analysts to follow.
1999 Equipment
(thermometers,
centrifuges, hot
shakers,
autoclaves),
Calibration,
Contamination
10.2,
10.2.2
The DNA QA manual does contain documented programs of
calibration and their frequency for certain equipment, but not all.
The thermometers had a form present but no required time
frame. There are not scheduled time references for calibration or
checks of other equipment such as centrifuges, hot shakers,
autoclaves, etc. The DNA QA manual should be modified to
allow for an increase in tolerance ranges for temperatures of
refrigerators and freezers. Currently, several refrig/freezer charts
show temperatures out of the acceptable +/- 2 degrees. The
There is no schedule for calibrating autoclaves,
thermometers and other equipment. Autoclaves are
used for sterilization if an autoclave is not
calibrated we cannot know that it is heating to the
proper temperature and actually cleaning the lab
equipment. This could be a source of contamination.
If thermometers, centrifuges and hot shakers are
not calibrated we do not know that items are being
heated to the correct temperature or spun at the
thermometers have a tolerance range of +/- 1 degree and
calibration documents recorded that no. 802774 was found to be
2 degrees off, but was still left in service (though labeled as
such). This is a validation of your procedures which state that it
should have been removed.
correct speed improper temperatures and speeds
can affect a chemical reaction, separation of DNA
and the results produced. STR test kits are affected
by temperature.
1999 Lack of
protocols,
Interpretation
issues
12.1.1 Although there is clearly an understood policy with regards to
handling discrepancies between analysts and reviewers, it is not
spelled out within the QA Manual.
Where there is a discrepancy between an analysts
casework and her supervisors review of her work,
there needs to be a clear policy for recording what
the discrepancy was so that the attorney is aware of
where there were potential problems with the
analysis.
1999 Lack of
protocols,
Interpretation
issues
Casewor
k Review
The QA manual states that one should visually assess stutter.
How is this performed and agreed upon without a mathematical
reference? For consistency within the Laboratory perhaps
guidelines should be developed to handle situations of stutter in
regards to carry-over in mixed stains. Perhaps the Laboratory
may want to conduct a mini-stutter study using the raw data in
the population databases, to demonstrate that your stutter
values are in accordance with West Palm Beach. This would just
require some number crunching. Bands occurring in the n +4
locations should also be addressed within the guidelines.
The latest version of the guidelines handles partials profiles
nicely by listing the number of bands present and those missing.
This better clarifies your results versus just stating that the
partial profiles are consistent with a donor.
Attorneys should be aware the there are not
guidelines that insure a consistent approach to
interpreting stutter. This could lead to incorrect
interpretations, particularly with DNA mixtures,
partial profiles or low copy number DNA.
See Roland AH van Oorschot et al, Forensic trace
DNA: a review. Investigative Genetics 2010, 1:14.
2000 Instrument
precision
studies
8.1.3.1(b) Reproducibility studies were conducted, however instrument
precision studies were not. Since this laboratory uses visual
confirmation of allele designations precision studies are not
applicable. If the laboratory relies on StarCall, precision studies
will need to be completed.
It is not possible to determine the precision of
analyst interpretations because they are relying on
visual confirmation of allele designations. The fact
that the SBI is using visual confirmation after
Genemapper means this is a human call
(subjective) as opposed to a call made by program
software.
2000 Quality Control 3.1,
5.1.3,
12.2
Recommend incorporating into Section 15 of the Quality
Assurance Manual, specifics on the number of samples that will
be randomly reanalyzed for quality control of outsourcing
convicted offender samples as well as continuing education and
court testimony standards.

Recommend CODIS Manager acquire more training in computer
networks and database management. Although this individual
has some working knowledge of computers, he would benefit
from formal coursework in computers. Currently he has no
documented coursework.

If the number of samples that will be randomly
reanalyzed for quality control is not clear, it is
impossible to know whether this quality control is
being performed adequately or not.

Lack of training in the use of computer networks and
database management could be a source of error in
entering CODIS data into the database.

Recommend reviewing manuals with staff. The scientists
interviewed were not familiar with all aspects of the Quality
Assurance Manual, specifically quality control of critical reagents
and Quantiblot protocol.

Recommend surplussing of old equipment to ensure analysts do
not inadvertently use equipment out of circulation (specifically
serofuges and RFLP equipment).

Recommend technical and administrative reviewers more
closely scrutinize case files (specifically initialed cross-outs,
concordance issues, use of correct forms, presence of all forms,
completion of chain of custody data).

Inadvertent use of old equipment could result in
reactions that do not occur as expected.

Indicates reviews of casework are not being
performed adequately.
2000 Quality Control 7.3.3 Recommend clarification of Section 7.3.3 of the Quality
Assurance Manual that all forensic samples require quantitation
of human DNA.
Failure to quantitate DNA can produce unexpected
results.
2003 Calibration 1.1.2.7
(E)
Calibration of Equipment and Instruments - The calibration
procedures for the balances and the FTIR in the Drug Chemistry
and Biology sections do not include accuracy tolerance limits.

Supplemental Finding: Accuracy tolerance limits have been
added to the calibration in the Drug Chemistry and Biology
Sections (See section 8.7 for Biology). Certified weights have
been purchased and are available to these sections and other
disciplines in the Crime Laboratory.
Prior to this audit we cannot be confident that any
balance used in the Biology section was accurate.
Balances are used in this section to prepare
reagents used for extraction and other procedures.
2003 Calibration,
Interpretation
Issues
1.4.2.8
(E)
Are the appropriate controls and standards specified in the
procedures and are they used and documented in the case
record to ensure the validity of examination results? The
quantitation procedure in Biology uses a serial dilution to create
a set of standards ranging from 10 ng to 0.15 ng, as well as two
calibration controls intended to assess the performance of the
standards. The technical procedures specify the use of these
standards and calibrators, but do not address the expected
results, acceptable performance of the standards or calibrators,
or the interpretation of the results (DNA Audit Document
standard 9.1, 9.1.2). The procedure does not specify a minimum
number of visible standards (or minimal DNA concentration) as
well as data interpretation to ensure uniformity among analysts.

Supplemental finding: The technical procedures for the Biology
Section have been revised to address the expected results,
acceptable performance of the standards or calibrators, and the
interpretation of results. The procedures also specify a minimum
number of visible standards (or minimal DNA concentration) as
Performance of calibration controls for measuring
the quantity of DNA is useless if there is no guide
for the accepted range of results.

If there is no standard for interpretation, each
analyst can use his/her own criteria (subjective) and
there is no way to measure whether the analyst is
using correct criteria.

For DNA kits, a lab must demonstrate that their
results are within the acceptable tolerance.
well as data interpretation to ensure uniformity among analysts.
2003 Case records,
contamination
1.4.2.14
(e)
Do the examiners generate and does the laboratory maintain, in
a case record, all the notes, worksheets, photographs, spectra,
printouts, charts and other data or records used by examiners to
support their conclusions? In the Biology Section,
Administrative Order 01-PRO-4 dated April 24, 2001 requires
that mandatory steps be followed when case samples are
batched. During analyst interviews, it was determined that
samples from different cases may be batched for extraction,
quantitation, and/or amplification. However, there is no
documentation in individual case records when samples are
batched, making it impossible to compare results obtained
between cases should the need for such comparison arise (i.e.
for trouble-shooting). (DNA Audit Documentation standard 11.1,
11.1.1).

Supplemental finding: Administrative Order 01-PRO-04 dated
April 24, 2001 in the Biology Section has been revised and now
includes the steps to be followed when case samples are
batched. Additional notation areas have been added to the pre-
printed case notes to show which case have been batched. The
revised pre-printed forms were submitted for review to reflect
that this documentation is currently being used in the individual
case records. Review of three batch sample confirmation case
record reviews confirmed that is now being done.
Where there is no notation that cases are batched
together during extraction, quantitation or
amplification, it cannot be determined whether cross
contamination from another case may have
occurred.

If cases are batched, attorneys need the results
from the other cases that are run with the sample in
order to compare the results and explain
unexpected results.
2003 Lack of
Protocol,
Interpretation
issues
9.1, 9.1.2 Does the laboratory have and follow written analytical
procedures approved by laboratory management/technical
manager or leader? No.

Do the analytical procedures describe reagents, sample
preparation, extraction, equipment, and controls which are
standard for DNA analysis and data interpretation? No.

Response: In response to this finding, the Technical Leader
produced written guidelines for DNA Quantitation and
Interpretation. See attached sheets labeled NCSBI
MOLECULAR GENETICS SECTION Quality Assurance Manual
Revision 04 Appendix F STR Interpretation Guidelines.
If there is no standard for interpretation, each
analyst can use his/her own criteria and there is no
way to measure whether the analyst is using correct
criteria.
2003 Case records 11.1,
11.1.1
Does the laboratory have and follow written procedures for
taking and maintaining case notes to support the conclusions
drawn in laboratory reports?

Does the laboratory maintain in a case record, all documentation
If all case notes are not kept according to
procedure, it is impossible to know whether all
documentation regarding a case has been received
in a case file. Additionally, notations that may be
relevant to case work may be discarded and never
generated by examiners related to case analyses?

Response: In response to this finding, the Technical Leader
created new analysis forms which contain areas for writing down
batched case numbers. Copies of actual case notes are
attached which show the use of these new forms.
viewed by a reviewer or by the defendant.
2005 Training Recomm
endation
(letter)
The CODIS Administrator and Safety Office each perform
valuable functions within the department. The interviews
conducted with each of these individuals indicated the need for
additional training that would enhance their job performance.
The CODIS Administrator indicated a need for training in
computer networking (as required in the audit document). The
Safety Officer has recently assumed her new role as a Safety
Officer for the Forensic Laboratory as well as the DNA
Laboratory. This is a significant role and external training in this
field will benefit the laboratory.
The lack of computer networking training of the
CODIS Administrator appears to be ongoing from
2003.
2005 Case records 11,
Recomm
endation
(letter)
Current laboratory reports include a report date that is not
indicative of the time the final report was generated. It is difficult
to determine from the report approximately when the report was
issued to the requesting officer, or if the report was issued prior
to all review being completed. Our recommendation would be to
include a date next to the signature which reflects when the
approved report was issued, or to have the date that is currently
at the top of each report more accurately reflect when the
approved report was issued.
It is possible that reports are being given to law
enforcement officers prior to all reviews being
completed because the lab reports do not include a
date the indicates when the final report was
generated.
2006 Expired
reagents
According to current NCSBI safety policy, label all reagent-
containing containers with an expiration date, or, revise the
NCSBI safety manual to reflect current labeling practices of the
DNA laboratory.

This problem reoccurred in 2010 query whether it
was ever corrected. Certain expired reagents will
impact the results of STR analysis.
2006 Lab equipment
(refrigerators,
freezers,
incubators)
Record temperatures for refrigerators, freezers, and incubators
on a daily basis and disseminate responsibility for these duties,
as necessary.
Failure to keep these records indicates that we
cannot be sure that samples are being stored at or
incubated at the correct temperature.
2007 Lack of
protocols,
Interpretation
issues
9.1 Does the laboratory have and follow written analytical
procedures approved by laboratory management/technical
manager/leader? No because the lab does not have a
documented standard operating protocol for each analytical
technique used. (9.1.1) DNA Database SOP (section 3.5.5.4)
and CODIS SOP (section 3.2.1) do not reflect current practices
(they still refer to PowerPlex 1.1/1.2 and gels)
It appears the lab was operating without a standard
operating procedure for the current equipment.
2007 Calibration 10.2 10.3 - Does the laboratory have a documented program for
calibration of equipment and instruments? No because
each instrument requiring calibration, does not have
Source of cross exam
documented the frequency of calibration and such
documentation has not been retained in accordance with
applicable federal or state law. Per SBI QA manual section
8.9.4, Calibration of thermacyclers will be calibrated by an
external agency twice a year. This was due in April, but was
not completed.
SBI response: Questions 10.2 and 10.2.2
The requirement for biannual testing by an external vendor was
deleted.
2009
NFST
C
Training Question 5.1.2.1(a) Does the training program contain at a
minimum the following components: A training manual that
covers all applicable DNA analytical procedures that the
analyst/technician will perform? The training manual for STRs
was not updated at the annual review following implementation
of Y STR testing.
If the training manual is not kept up to date it calls
into question what training on the newest
procedures is being conducted.
2009
NFST
C
Training Question 5.2.3.2.6 Does the technical leader perform the
following specific responsibilities: Review and approve the
training, quality assurance, and proficiency testing programs in
the laboratory? The technical leader did not document the
approval of newly qualified analysts.
Failure to document approval of newly qualified
analysts calls into question which analysts are
qualified on which technique.
2009
NFST
C
Case records Question 9.1 Does the laboratory have and follow written
analytical procedures approved by the technical leader? The
laboratory is not consistently following its procedure for reporting
the upload of forensic unknown CODIS samples as outlined in
the laboratorys Appendix E STR Interpretations Guidelines
Section 3.5.1.3. The laboratorys STR interpretation guidelines
require that when samples are added to the forensic unknown
index of CODIS, the report will reflect this by including standard
wording in the report.
Attorneys may not know when a search of CODIS
has occurred.
2009
ASCL
D
Contamination,
Lack of
Protocols
Corrective Action Reports are not being sent to the Technical
Leader for review as per Section Policy 10.1.2 of the DNA
Database Policy and Procedures Manual. This included several
issues of contamination. Staff interviews revealed that the
Technical Leader was not always informed of Corrective Action
Reports initiated in the DNA laboratory. Contamination issues
are reported to the direct supervisor who sends a memo to the
Deputy Assistant Director and Quality Assurance Manager. It is
the Deputy Assistant Director who decides whether the section
manager or the technical leader is informed. Consequently, the
technical leader cannot monitor quality issues or conduct
technical problem solving if he is not informed of quality issues
that arise in the DNA laboratory.
Failure to send Corrective Action Reports to the
Technical Leader of the Section means that the
section manager and technical leader may be
unaware of quality issues and problems with
procedures being used in the section. Several
issues of contamination are noted here.
2009
ASCL
Lack of
Protocols,
Question 9.1 Does the laboratory have and follow written
analytical procedures approved by laboratory
Analysts are not following procedures for calculating
Combined Probability of Exclusion statistics for
D Issues with
Interpretation
management/technical manager/leader?
The DNA QA Manual states that for mixtures, Combined
Probability Exclusion (CPE) statistic may be calculated
independently for each reference sample not excluded from the
mixture. When calculating separate CPEs values for each
reference sample on the mixture, the manual states the report
will (Appendix F-4.4.3.7) indicate the number and the identity of
loci used for each of the calculations. The reports reviewed
using more than one CPE value for a mixture did not indicate
the loci or the number of loci used in the calculations.
SBI response: In Revision 10 of the Interpretation Guidelines
(Appendix F-4.4.3.7), the wording has been changed from the
report wording will be as follows to the report may be worded
as follows.
samples not excluded from a mixture. An expert
should review these calculations to determine
whether they are appropriate.

The SBI response perpetuates the problem by
making the interpretation guidelines more of a
suggestion than a protocol that must be followed.
2009
ASCL
D
Question 9.5 Does the laboratory check its DNA procedures
annually or whenever substantial changes are made to the
protocol(s) against an appropriate and available NIST standard
reference material (SRM) or standard traceable to a NIST
standard? Comment The laboratory has used a sample MJ B
062304 since 2005 as their NIST traceable sample for their
annual check. However, there is no direct documentation to
support traceability to a NIST standard. Review of the
documentation available for the comparison of the check of
sample MJ B 062304 completed in 2004 lacks the naming of the
lot number of MJ B used and a verification of the results obtained
from the comparison to the NIST published values. In addition,
the methodology using the Qiagen BioRobot Universal System
using the QIAamp Media MDx kits on database samples was
not checked against the NIST or NIST traceable standard in
2008.
The lab is using a DNA sample from an unknown
source (though we believe the source to be analyst
Mike Budzynski) to the annual check of their
machines and procedures instead of using a known
NIST sample that will produce known results.
2009
ASCL
D
Case records,
Interpretation
issues
Question 11.1 (FO) Does the laboratory have and follow
written procedures for taking and maintaining case notes to
support the conclusions drawn in laboratory reports? The
laboratory STR Interpretation Guideline, Appendix F, section
4.4.2.2.3 specifically states that if alleles are not present at one
or more loci then there must be a compelling reason for NOT
excluding a standard (e.g. allelic dropout and/or inhibition).
There is no documentation in the case files reviewed as to why
the analyst selected loci to be excluded.
SBI response: In Revision 10 of the Interpretation Guidelines,
Appendix F, section 4.4.2.2.3, the statement, if alleles are not
present at one or more locus, then there must be a reason for
NOT excluding a standard (e.g. allelic dropout and/or
inhibition), has been deleted.
This indicates that case files were reviewed where
analysts failed to exclude a standard where alleles
were not present at one or more loci and in violation
of the labs protocols, did not document a
compelling reason for not excluding that standard.
This indicates analysts are failing to exclude
individuals should be excluded, according to their
own protocol.

The SBI response removes the need to justify a
decision to not exclude despite alleles not being
present at one or more locus.


2009
ASCL
D
Lack of
Protocols
Question 11.1 (CO) Does the laboratory have and follow
written procedures for generating and maintaining
documentation for database samples?
Comment The laboratory DNA Database Unit Standard
Operating Procedure (December 15, 2008) in Section 3.3.3
requires that additions to records generated should not only
initial the form where required but also date the entry. The DNA
Database Collection Card is not dated or initialed when the
technician adds information. The card is initialed and dated
when changes or corrections are made. In addition, the required
format for the naming of the batch for in house processing of
convicted offender samples is not being used. This was
corrected on site with an updated version (J anuary 9, 2009) of
the manual.

2009
ASCL
D
Lack of
protocols
procedures for taking corrective action whenever proficiency
testing discrepancies and/or casework errors are detected?
Comment Section 10.1.2 of the DNA Policy and Procedure
Manual states that the Special Agent in Charge and the
Technical Leader will be notified anytime questions arise
concerning discrepancies or the efficacy of a technical
procedure using casework analysis. This section also states the
technical leader should then immediately investigate. This
section of the manual is in conflict with the laboratorys
corrective action plan (Procedure 39) which states that the
individual recognizing a quality problem immediately notifies the
supervisor who in turn notifies the Laboratory Director Quality
Manager and the Assistant Deputy Director (Procedure 39).
There is no requirement for the Assistant Laboratory Director to
inform the Technical Leader. In addition, the DNA Quality
Assurance Policy Section 2.1.5.7 states that the technical leader
will be informed of any anticipated problems.
The Technical leader of the lab is not being notified
of all Corrective Actions and therefore is not aware
of the problems occurring within the lab.

2010
CW-
KSP
Training Question 5.1.3.1.1 Comment no internal continuing education
was conducted.

2010
CW-
KSP
Contract work Question 5.2.3.2.3 Comment DNA casework was not
outsourced
On p. 92 the audit states that Bode DB and LabCorp
CW outsourcing agreements are in place. This
indicates some confusion or miscommunication with
the auditors about whether outsourcing is occurring.
The audit notes that if casework is outsourced, the
technical specifications must be approved by the
technical leader.
2010
CW-
KSP
Question 5.2.4.1.1 Comment A new DNA Technical Leader
was available and was immediately appointed.

This indicates that the DNA Technical Leader had
been replaced since the last audit. Can we find out
under what circumstances and what happened to
the prior technical leader?
2010
CW-
KSP
Validation Question 8.3.3, 8.3.4 Comment The laboratory has not had a
change in detection platform during this audit cycle. The new AB
7500 instruments for which initial validation has been conducted
have not yet been put into use, nor have competency tests been
conducted pending additional validation work not yet undertaken
(Quantifiler Duo validation).
This indicates some new machines are coming
online. What information do we have on AB 7500 or
Quantifiler Duo? Are we certain that proper
validation studies, training, and proficiency testing
have been completed?
2010
CW-
KSP
Expiration date
of reagents
Question 9.2 Does the laboratory use reagents that are
suitable for the methods employed? No. Comment The
laboratory has no policy for setting expiration dates for reagents
without a manufacturer-provided expiration date. They track
reagent lot numbers in their casework, but have not assigned
expiration dates to reagents such as phenol/chloroform,
formamide, and other commercial reagents for which no
manufacturer expiration date has been assigned.
Question 9.2.2(b) Are commercial reagents labeled with: The
expiration date as provided by the manufacturer or as
determined by the laboratory? See comment to No. 1 above
The use reagents that are not suitable for the
methods employed calls into question the validity of
any of the results produced by this section of the
lab. It is not clear which reagents are not suitable.
The use of unsuitable reagents may affect any
stage of DNA testing including DNA extraction, DNA
quantitation, polymerase chain reaction, the
separation and detection of PCR-produced STR
(short tandem repeat) alleles, and the production of
electropherograms through electrophoresis.
Question 9.2.2(b) may explain what is meant by use
of reagents that are not suitable, though it is not
clear that the use of reagents without expiration
dates is the only problematic practice that 9.2 refers
to. Use of reagents that have not been assigned
expiration dates may result in the use of reagents
that are expired and are not longer effective. Among
the reagents listed are phenol/chloroform (used for
extraction) and formamide (used in electrophoresis).
2010
CW-
KSP
Lack of
protocols,
Interpretation
Issues
guidelines for the interpretation of data? Comment The
laboratory has written interpretation guidelines, but is not
consistently following them with respect to their STR
interpretation guidelines 3.2.7.5 (overblown samples may be re-
run with lesser amounts of DNA) and section 3.3 (definition of an
artifact). Auditors noted many sample electropherograms
exhibiting off-scale/overblown data yet few of the overblown
samples were re-run (or re-amplified) using a lower amount of
amplified product (or reduced template) as indicated by 3.2.7.5.
It was also noted that the artifact labeled was overused and
often did not meet the definition of an artifact as defined in the
interpretation guidelines. In reviewing recent corrective actions it
was noted that there had been two corrective actions involving
erroneous interpretation of artifacts. In one, an artifact peak was
The fact that the lab doesnt follow its own policy
regarding definition of an artifact indicates that
analysts are using their own subjective criteria to
decide what is an allele and what is an artifact. This
means interpretations are not going to be consistent
between analysts or reproducible. The results may
be incorrect and may be subject to bias. See
SWGDAM for a definition of artifact. We should
attempt to get a copy of the Corrective Action logs
and records. Failure to follow lab policy with respect
to re-running overblown samples indicates again
that analysts are using their own subjective criteria
to make determinations in cases.
labeled as an allele, and in the other an allele peak was
removed as an artifact.
2010
CW-
KSP
Lack of
Protocols
Question 12.2.4 Does the laboratory document the
completion of the technical review of forensic casework, and
does it include the following elements: A review of all controls,
internal lane standards, and allelic ladders to verify that the
expected results were obtained? Comment The laboratory
does not require review of internal lane standards in their
entirety, but only a review of the ~250bp peak within the internal
lane standard. When questioned, some analysts said that they
only looked at the 250 peak and not the rest of the size
standard.

Analysts may not be reviewing standards
completely and correctly. Failure to review all data
available prevents analysts from making the best
interpretation of the results.
2010
KSP-
DB
Contract work The audit states that the lab uses Bode Technology Group as a
contract laboratory.
It is not clear what type of contract work Bode
Technology Group does for the State Crime Lab or
why it is necessary to contract out work.
2010
KSP-
DB
In section 5.2.4.1.1 b & c comments, it is stated that a qualified
individual was immediately appointed as DNA Technical Leader.

The Technical Leader of a lab is accountable for the
technical operations of the laboratory and is
authorized to stop or suspend laboratory operations
if there is a problem. This finding indicates that the
Technical Leader was replaced since the last audit.
It may be important to know why the previous
Technical Leader left.

Former N.C. R. Evid. 702(a).
1
N.C. R. Evid. 702(a), as amended effective 1 October 2011.
2
Changes to Rule 702(a): Has North Carolina Codified Daubert
and Does It Matter?
During the past legislative session, the General Assembly changed Rule
702(a) that deals with the admissibility of expert testimony. This change tracked,
in pertinent part, an amendment to the same federal rule that was designed to
codify the principles in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993).
Previously, the Rule 702(a) rule allowed a qualified person to testify in the
form of an opinion [i]f scientific, technical or other specialized knowledge
would assist the trier of fact to understand the evidence or determine a fact in
issue. The amendment added the following language regarding when a qualified
1
person may testify. Now, a witness could testify in the form of
. . .an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and
methods.
(3) The witness has applied the principles and methods reliably
to the facts of the case.
2
Despite the identical language of the federal and North Carolina versions of
Rule 702, some confusion has surrounded whether North Carolina applies the
Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004).
3
State v. Hudson, No. COA11-444, slip op. at 5 n.1 (7 February 2012) (unpublished).
4
principles in Daubert to the admissibility of expert testimony. Indeed, in
Howerton v. Arai Helmet, Ltd., the Supreme Court of North Carolina declared,
North Carolina is not, nor has it ever been, a Daubert jurisdiction.
3
But federal rule 702 was amended to codify Daubert and now the state rule
702(a) has been amended in a similar fashion. Indeed, the North Carolina Court of
Appeals recently noted Rule 702(a) was amended to adopt the standard for expert
testimony set forth in Daubert . . . Assuming this observation accurately
4
describes this amendment as codifying Daubert, and assuming Howerton meant
what it said in stating North Carolina is not a Daubert state, the courts must now
puzzle what this change to Rule 702(a) means for the admissibility of expert
testimony in North Carolina.
This article offers some preliminary observations about this development.
In doing so, it provides some historical perspective on expert testimony and
Daubert, examines North Carolinas approach to expert testimony, and compares
the new language of the rule to change with an eye toward explicating the effect of
the amendment.
Reviewing the import of Daubert on expert testimony in federal court
Daubert worked a fundamental change in the approach to novel scientific
Frye v. United States, 293 F. 1013 (D.C. App. 1923).
5
Id. at 1014.
6
Id.
7
testimony in federal court. Essentially, Daubert decreed the Frye test no longer
5
applied after the adoption of Federal Rule 702. Frye explained expert testimony
about novel scientific principles would only be admissible when there was a
general acceptance of the underlying theory in the relevant scientific community.
6
Frye involved the admissibility of testimony about the results of a systolic blood
pressure test. The court rejected the admissibility of this novel scientific
testimony. In doing so, it noted the line between experimental and demonstrable
stages is somewhat difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized . . . [and] the thing from which
the deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.
7
Long after the Frye decision, the federal rules of evidence of were
adopted. Rule 702(a) provided, if scientific, technical, or other specialized
knowledge will assist the trier of fact to determine the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.
Daubert held Rule 702 superseded the Frye test with respect to novel
Fed. R. Evid. 401.
8
scientific testimony.
Daubert made several essential points. First, the rules of evidence are
designed to admit evidence whenever possible. Relevant evidence, which is any
item that tends to make a material fact more likely than it would be without the
evidence, is generally admissible. Rule 702 follows this general principle of
8
evidential admissibility. It allows expert testimony from any person who is
appropriately qualified when the witness opinion would assist the fact-finder in
understanding the evidence or determining a material fact.
Daubert involved a situation where a trial court excluded expert testimony
about the effect of a particular drug on birth defects in humans. Once the trial
court excluded this expert testimony, the plaintiff was unable to establish
causation. Accordingly, the trial court granted summary judgment for the
defendant.
Daubert reversed this grant of summary judgment. It noted the Frye test
was inconsistent with Rule 702. The trial court had erred in excluding this
proffered expert testimony.
Again, Daubert focused on two important principles in rejecting the Frye
test and in reversing the grant of summary judgment for the defendant. First, the
rules of evidence are designed to allow the jury or the fact-finder to consider all
Daubert, 509 U.S. at 489-95.
9
relevant evidence. That is, evidence should generally be freely admitted. Second,
Rule 702 is similarly designed to admit expert testimony when it would assist the
jury or the fact-finder in its consideration of relevant evidence or in its
determination of the issues.
9
Daubert explained that Rule 702 is broad. The pertinent inquiry for a trial
court regarding the admission of expert testimony is flexible. A trial court
should examine whether a particular theory has been tested; whether it has been
subjected to peer review; whether there is a potential or known error rate; and
whether there is a level of acceptance within the relevant scientific community.
Aside from its analysis of Rule 702, Daubert established a gatekeeping
role for trial judges. Trial judges must screen proffered expert testimony and
determine whether it is admissible within the context of the rules of evidence.
Although Daubert rejected the Frye test and indicated that expert testimony
should generally be admitted, its assignment of a gatekeeping role for trial
judges proved somewhat problematic. Indeed, several subsequent decisions
created a situation in the federal courts where trial judges continued to exclude
proffered expert testimony and prevented plaintiffs from taking their cases to a
jury trial. For example, a trial court was permitted to exclude proffered expert
testimony if the linkage to the applicable data was provided only by the ipse dixit
See General Electric Company v, Joiner, 522 U.S. 136 (1997). General Electric
10
involved testimony about a study of the impact of PCBs on baby mice and an extrapolation to
their effect on humans. The linkage between this study and the effect on humans came only from
the opinion of the expert.
See Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999). Kumho Tire approved
11
the use of the Daubert analysis by a trial judge to exclude non-novel expert testimony about the
design defects of tires based solely on a visual examination by the expert.
See Weisgram v. Marley Company, 528 U.S. 440 (2000).
12
Howerton, 358 N.C. at 458-69, 597 S.E.2d 686-93, reversing, 158 N.C. App. 316, 581
13
S.E.2d 816 (2003).
of the expert. Daubert was later extended to all expert testimony, not just novel
10
scientific techniques. Finally, the procedure under Daubert expanded to allow
11
an appellate court to find a trial court abused its discretion in admitting certain
expert testimony and remand the matter for entry of judgment as a matter of law
rather than merely remand for reconsideration. Despite the breadth of Daubert in
12
touting the general admissibility of expert testimony, the post-Daubert practice in
federal court saw the tendency toward excluding expert testimony and granting
summary judgment.
Reviewing what Howerton did to expert testimony in North Carolina
Howerton was the important post-Daubert decision in North Carolina. In
Howerton, the trial court excluded four experts proffered by the plaintiff. It based
this exclusion on its determinations of unreliability given the methodology used by
the experts and the experts lack of qualifications. After the trial courts ruling was
affirmed by the Court of Appeals, the Supreme Court of North Carolina reversed.
13
Id. at 464, 597 S.E.2d at 690.
14
State v. Goode, 341 N.C. 221, 321 S.E.2d 224 (1998).
15
Howerton included a lengthy discussion and analysis of Daubert and its
aftermath with respect to federal practice and procedure. This analysis surmised a
primary result of Daubert in the federal courts was a reduction in jury trials in
civil cases, stemming in large part from the tendency of trial judges to exclude
expert testimony in the exercise of their gatekeeping role. It found this
gatekeeping approach to be troublesome and unduly mechanistic.
14
Unquestionably, Howertons displeasure with this development played a
significant role in the ruling.
In supporting its declaration that North Carolina is not, nor has it ever
been, a Daubert jurisdiction, Howerton examined North Carolinas longstanding
jurisprudence regarding expert testimony. At the outset, it explained North
Carolina has never used the Frye test. It discussed numerous decisions in which
proffered expert testimony, both involving routine science and novel science, had
been evaluated for admissibility based upon the essential criterion of reliability. It
did so by underscoring North Carolinas stated preference for juries being allowed
to hear relevant expert testimony and decide how to apply it to the facts of a case.
Howerton noted the applicable standard in North Carolina had been
articulated in State v. Goode. Under Goode, the requirement for reliability of
15
Howerton, 358 N.C. at 461, 597 S.E.2d 687.
16
Id. at 459-64, 597 S.E.2d at 686-89.
17
expert testimony added nothing new to the law of scientific and technical evidence
in North Carolina. A trial court should initially look to precedent for guidance in
determining whether a particular scientific technique has been accepted or
rejected. In the absence of specific precedent, a trial court should look for indices
of the liability, including estimated techniques, the experts background, visual
aids for the jury, and the experts independent research.
16
Howerton distilled the inquiry delineated in Goode and fashioned a three-
step process a trial court should use in determining whether to admit expert
testimony:
1. Is the experts proffered method of proof sufficiently reliable as an
area for expert testimony?
2. Is the witness qualified as an expert in that area of testimony?
3. Is the experts testimony relevant?
17
This three-step process from Howerton and Goode is essentially an inquiry
to the relevancy and reliability of the evidence. The evidence must, of course, be
relevant under Rule 401. It must make a material fact at issue more or lass likely
than it would be without the evidence. Then it must be reliable. A trial court
should look at whether the expert used established techniques. The trial court
should look at whether the expert has a professional background in the field. The
trial court should look at whether the expert did independent research. The trial
court should look at whether the expert has visual aids so the jury does not have to
accept the experts hypothesis at face value.
At bottom, Howerton noted Rule 702 should be read liberally, as the
drafters intended, to admit expert testimony so long as it is both relevant and
reliable. That is what Daubert said. In many ways, Howerton was no different
than Daubert, except for Howertons displeasure with the manner in which federal
trial judges had exercised their gatekeeping role to increase the cases in which
summary judgment was granted and thereby decrease jury trials.
Reviewing how Rule 702(a) compares to Daubert and Howerton
Rule 702(a) now requires three things. First, the proffered expert testimony
must be based upon sufficient facts or data. Second, the proffered expert
testimony must be the product of reliable principles and methods. Third, the
proffered expert must have applied the principles and methods reliably to the facts
of the case. These three steps are essentially what Daubert and, to a great extent,
Howerton and Goode require.
Rule 702(a) now specifies two things not explicitly delineated in Daubert or
Howerton: the experts testimony must be based upon sufficient facts or data
and the expert must have applied the principles and methods reliably to the facts
of the case. These notions may well have been implicit in Howerton and Goode,
Id. at 460, 597 S.E.2d at 687.
18
as it is unclear how proffered expert testimony could have been deemed reliable
under these cases if it was not based upon sufficient facts or data through
principles and methods applied reliably to the facts of the case.
One aspect of Howerton and Goode that should not survive this amendment
is the binding force of precedent. Howerton expressly directed trial courts to look
to precedential guidance in deciding whether to admit expert testimony.
18
Applied rigidly, this notion would freeze scientific testimony or at least make it
more difficult for trial courts to revisit areas of expert testimony despite changes in
scientific understanding. In light of recent scientific understanding of techniques
heretofore accepted in criminal cases, such as blood spatter analysis and other
types of novel or junk science, Rule 702(a) should provide for reexamination of
admissibility.
One aspect of Howerton that should survive this amendment is North
Carolinas preference for jury trials. In many ways, Howerton could be interpreted
as an indication that North Carolina is not a summary judgment state, as
opposed to North Carolina is not a Daubert state. Trial courts should remain
vigilant in affording parties the opportunity to have a trial on the merits and resist
the temptation to resolve disputes through summary judgment.
Conclusion
The essential teaching of Daubert, Goode, and Howerton is expert
testimony should be liberally and freely admitted so long as it is relevant and
reliable. Although reliability may be in the eye of the beholder, both Daubert and
Howerton strongly suggest a preference admitting expert testimony so the trier of
fact can consider it.
http://ncforensics.wordpress.com/2011/08/17/legislativechangeregardingexperttestimony/
LegislativeChangeRegardingExpertTestimony
ByAlysonGrine,UNCSchoolofGovernmentDefenderEducator(August17,2011)
InS.L.2011283(H542),theGeneralAssemblyrevisedNorthCarolinaEvidenceRule702(a).Rule
702(a)guidesthetrialcourtinservingagatekeeperfunctionwithregardtoexperttestimony;the
trialcourtmustmakeapreliminarydeterminationastowhetherawitnesshasthequalificationsto
testify as an expert, and if so, whether the experts testimony is admissible. S.L. 2011283 was
enactedasapartof newlimitsinciviltortactions;however,theamendedruleapplies tocriminal
cases as well as civil. Thus, criminal defenders are asking: to what extent has the framework for
determiningtheadmissibilityofexperttestimonychanged?
TheamendmentstoChapter8C,Rule702(a)read:
(a)Ifscientific,technicalorotherspecializedknowledgewillassistthetrieroffacttounderstand
theevidenceortodetermineafactinissue,awitnessqualifiedasanexpertbyknowledge,skill,
experience,training,oreducation,maytestifytheretointheformofanopinion,orotherwise,ifall
ofthefollowingapply:
(1)Thetestimonyisbaseduponsufficientfactsordata.
(2)Thetestimonyistheproductofreliableprinciplesandmethods.
(3)Thewitnesshasappliedtheprinciplesandmethodsreliablytothefactsofthecase.
Thelegislationdoesnotalterthelanguagepertainingtothequalificationsofanexpert.Instead,the
legislationaddstheabovesubpartstoimposerestrictionsontheadmissibilityofexperttestimony.
ThesubpartsareliftedverbatimfromFederalRuleofEvidence702asamendedin2000,whichwas
intended to codify the criteria for the admissibility of expert testimony established inDaubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).Daubertestablished the modern standard for
admittingexperttestimonyinfederaltrials;theCourtsetoutfivefactorsfortrialjudgestouseasa
measure of reliability in making a preliminary determination about the admissibility of scientific
evidence:
1. Istheevidencebasedonatestabletheoryortechnique;
2. Hasthetheoryortechniquebeensubjectedtopeerreviewandpublication;
3. Doesthetechniquehaveaknownerrorrate;
4. Aretherestandardscontrollingoperationofthetechnique;and
5. To what degree is the theory or technique generally accepted by the scientific
community?Id.at59394.
InHowerton v. Arai Helmet, Ltc., 358 N.C. 440 (2004), the North Carolina Supreme Court rejected
the federal standard for determining the admissibility of expert testimony. North Carolina is not,
nor has it ever been aDaubertjurisdiction.Id.at 469. Instead, North Carolina has used the three
part inquiry set forth inHowerton: (1) Is the experts proffered method of proof sufficiently
reliableasanareaforexperttestimony?(2)Isthewitnesstestifyingattrialqualifiedasanexpertin
that areaof testimony?(3)Isthe expertstestimonyrelevant?Id.at458,relyingonStatev.Goode,
341 N.C. 513, 52729 (1995)(internal citations omitted). The first prong of theHowertontest
includes a requirement that the experts method of proof be reliable, much like the second
restrictioninamendedRule702(a).UnlikeamendedRule702(a),however,theHowertontestdoes
not explicitly require that experts have sufficient facts and data for their opinions, or that they
apply their methods reliably to the facts. Arguably, these were implicit requirements
underHowertonas they are components of reliability. Some North Carolina decisions have
recognized that experts should have sufficient facts and data for their opinions and should apply
their methods reliably.See, e.g.,State v. Grover,142 N.C. App. 411,aff d per curiam,354 N.C. 354
(2001).AmendedRule702(a)makesitclearthattrialjudgesmustapplythoserequirementsbefore
allowingexperttestimonybeforethejury.
TheapproachthatNorthCarolinaadoptedinHowertonwaslessmechanisticandrigorousthanthe
exacting standards of reliability demanded by the federal approach.Howerton,358 N.C. at 464
(internal citations omitted);see alsoRobert P. Mosteller et al., North Carolina Evidentiary
Foundations at pp. 1015 to 1017 (2d ed. 2006). Amended Rule 702(a) may or may not mandate
the precise approach required byDaubert, but by adopting the language of Federal Rule 702, the
General Assembly has raised the bar (or better stated, the gate), thereby requiring greater
scrutinyofexperttestimonythantheformerNorthCarolinaruleandthecasesinterpretingit.Court
actors should not presume that a method of proof that was deemed sufficiently reliable under the
formerNorthCarolinaruleandHowertonwillbeadmissibleundertheamendedrule.Thesubparts
added by S.L. 2011283 are not a codification ofHowerton,andit may no longer be good law.See
Daubert, 509 U.S. at 58687 (holding that the general acceptance test ofFrye v. United States,54
App.D.C.46(1923)wassupersededbytheadoptionoftheFederalRulesofEvidence).Inresponse
to the legislative changes, defenders should be prepared to conduct more rigorous scrutiny of
experts to determine admissibility, which will require probing discovery, motions, and voir dire
practicestodeterminewhethertheexpertstestimonycomplieswiththeamendedrequirements.
Asmentionedabove,theamendmentstoRule702(a)arepartoftheAnActtoProvideTortReform
forNorthCarolinaCitizensandBusinesses.Possibly,theGeneralAssemblydidnothaveaneyeto
the impact the amendments would have on criminal practice in North Carolina. However, recent
cases reveal growing concerns about unreliable expert testimony in criminal cases.See State v.
Ward,364 N.C. 133 (2010) (experts testimony was not based on sufficiently reliable method of
proof where expert identified substances based on a visual examination rather than a chemical
analysis);Statev.Davis,__N.C.App.__,702S.E.2d507(2010)(expertstestimonywasnotbasedon
sufficiently reliable method of proof where expert relied on odor analysis to conduct retrograde
extrapolation of defendants blood alcohol concentration at time of accident);State v. Meadows, __
N.C. App. __, 687 S.E.2d 305 (2010) (experts testimony was not based on sufficiently reliable
methodsofproofwhereexpertreliedontheresultsoftheNarTestmachine).Thus,amendedRule
702(a)maybeviewedasatimelyreforminthecriminalcontext.
Note: A later bill (SL 2011317) makes the revised rule applicable to actions arising on or after
October1,2011.Forcriminalcases,therulelikelyappliestocasesinwhichtheoffenseoccurredon
orafterthatdate.
1
2012 School of Government. Te University of North Carolina at Chapel Hill
NO. 2012/03 | SEPTEMBER 2012 ADMINISTRATION OF JUSTICE BULLETIN
Confrontation Clause Update:
Williams v. Illinois and What It
Means for Forensic Reports
Jessica Smith
Introduction
In 2004, the United States Supreme Court decided Crawfordv. Washington,
1
a blockbuster
decision that overruled the Ohiov. Roberts
2
reliability test that formerly applied to the Sixth
Amendments Confrontation Clause and adopted an entirely new analysis. Simply put, under
the new Crawford analysis, a testimonial hearsay statement by a person who does not testify at
trial is inadmissible unless the prosecution establishes unavailability and a prior opportunity
to cross-examine.
3
Crawfords dramatic impact on the criminal justice system cannot be ques-
tioned. Ample statistics back up this claim, among them, this: Westlaw reports that since 2004
a jaw-dropping 32,700 citing references have been made to the Crawford decision.
Also since 2004, the Court has issued numerous follow-up decisions. Each answered some
questions about the new analysis but also generated new areas of confusion. No case, however,
aside from Crawford, has created quite as much confusion as the Courts latest, Williamsv.
Jessica Smith is a School of Government faculty member who specializes in criminal law and procedure.
1. 541 U.S. 36 (2004).
2. 448 U.S. 56 (1980).
3. Elsewhere I have written in greater detail about the new Crawford test and the exceptions
to it. See Jessica Smith, Crawfordv. Washington: Confrontation One Year Later (UNC
School of Government, Apr. 2005), http://shopping.netsuite.com/s.nl/c.433425/it.A/id.4164/.f; Jes-
sica Smith, Emerging Issues in Confrontation Litigation: A Supplement to Crawfordv.
Washington: Confrontation One Year Later (UNC School of Government, Mar. 2007), http://
shopping.netsuite.com/s.nl/c.433425/it.A/id.4165/.f; Jessica Smith, Crawford Primer: Te New Confron-
tation Clause Analysis, in The Survival Guide: Superior Court Judges Benchbook (Sept. 2009),
www.sog.unc.edu/node/2197; Jessica Smith, Understanding the New Confrontation Clause Analysis:
Crawford, Davis, and Melendez-Diaz, Admin. Just. Bull. 2010/02 (Apr. 2010), http://sogpubs.unc.edu/
electronicversions/pdfs/aojb1002.pdf [hereinafter Smith, Understanding the New Confrontation Analysis].
My blog posts addressing case-specifc updates and related legislation can be found at the North Carolina
Criminal Law, UNC School of Government Blog, http://nccriminallaw.sog.unc.edu; enter Crawford in
the search box.
2 Administration of Justice Bulletin No. 2012/03 | September 2012
Illinois.
4
Like Melendez-Diazv. Massachusetts
5
and Bullcomingv. New Mexico
6
before it, Wil-
liams dealt with the status of forensic reports under the Confrontation Clause. Williams held
that the defendants Confrontation Clause rights were not violated when the States DNA expert
testifed to an opinion based on a report done by a non-testifying analyst. Te case is important
because neither Melendez-Diaz nor Bullcoming addressed the issue of whether a forensic expert
could testify at trial to an independent opinion based on reports prepared by other analysts who
did not themselves testify.
7
But because Williams is a fractured decision in which no one line of
reasoning garnered a fve-vote majority, it has resulted in confusion and uncertainty. Tis bul-
letin discusses Williams and addresses its implications on criminal cases in North Carolina.
Overview of Williams
The Facts
In Williams, the defendant Sandy Williams was charged with, among things, sexual assault of
victim L.J. After the incident in question, L.J. was taken to the emergency room, where a doctor
performed a vaginal exam and took vaginal swabs. Te swabs and other evidence were sent to
the Illinois State Police (ISP) Crime Lab for testing and analysis. An ISP forensic scientist, Brian
Hapack, confrmed the presence of semen in the swabs. About six months later, the defendant
was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court
order. State forensic analyst Karen Abbinanti extracted a DNA profle from the sample and
entered it into the ISP Crime Lab database. Meanwhile, L.J.s swabs from the earlier incident
were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs
to the ISP Crime Lab, having derived a DNA profle for the person whose semen was recovered
from L.J. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to
see if the Cellmark profle matched any of the entries in the state DNA database. Te computer
showed a match to the profle produced by Abbinanti from the defendants blood sample. Te
police then conducted a lineup, and L.J. identifed the defendant as her assailant. Te defendant
was charged and in lieu of a jury trial chose to be tried before a state judge, as apparently was
permissible in that jurisdiction.
The Trial
At the defendants bench trial, the State ofered three expert forensic witnesses. First, Hapack
testifed that through an acid phosphatase test he confrmed the presence of semen on the vagi-
nal swabs taken from L.J. He then resealed the evidence and left it in a secure ISP lab freezer.
Second, Abbinanti testifed that she used Polymerase Chain Reaction (PCR) and Short Tandem
Repeat (STR) techniques to develop a DNA profle from the blood sample that was drawn from
the defendant after his arrest, which she then entered into the state forensic database.
4. 567 U.S. ___, 132 S. Ct. 610 (2012).
5. 557 U.S. 305 (2009).
6. 564 U.S. ___, 131 S.Ct. 2705 (2011).
7. Bullcoming, 564 U.S. ___, 131 S.Ct. 2705 (Sotomayor, J., concurring) (noting: this is not a case in
which an expert witness was asked for his independent opinion about underlying testimonial reports that
were not themselves admitted into evidence).
Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports 3
Tird, Lambatos testifed as an expert for the State. On direct examination Lambatos
explained how PCR and STR techniques are used to generate DNA profles from forensic
samples, such as blood and semen, and how DNA profles could be matched to an individual
based on the persons unique genetic code. Lambatos stated that when comparing DNA profles
it is a commonly accepted practice within the scientifc community for one DNA expert to
rely on another DNA experts records. Lambatos testifed that Cellmark was an accredited lab
and that the ISP lab routinely sent evidence samples to Cellmark for DNA testing by Federal
Express to expedite the process and reduce lab backlog. To keep track of evidence samples and
preserve the chain of custody, analysts relied on sealed shipping containers and labeled ship-
ping manifests. Lambatos added that experts in her feld regularly rely on such protocols. When
Lambatos was shown shipping manifests that were admitted into evidence as business records,
she explained that they showed that the ISP lab had sent L.J.s vaginal swabs to Cellmark and
that Cellmark returned them, along with a determined male DNA profle. Te prosecutor then
asked Lambatos, Did you compare the semen that had been identifed by Brian Hapack from
the vaginal swabs of [L.J.] to the male DNA profle that had been identifed by Karen [Abbinanti]
from the blood of [the defendant]? Lambatos answered Yes. She testifed that, based on her
own comparison of the two profles, she concluded that [the defendant] cannot be excluded as
a possible source of the semen identifed in the vaginal swabs and that the probability of the
profle appearing in the general population was 1in 8.7 quadrillion black, 1in 390 quadrillion
white, or 1in 109 quadrillion Hispanic unrelated individuals. Asked whether she would call
this a match to [the defendant], Lambatos answered afrmatively. Te Cellmark report itself
was neither admitted into evidence nor shown to the trial judge. Lambatos did not quote or read
from the report, nor did she identify it as the source of any of the opinions she expressed.
On cross-examination, Lambatos confrmed that she did not conduct or observe the testing
on the vaginal swabs and that her testimony relied on the DNA profle produced by Cellmark.
She stated that she trusted Cellmark to do reliable work because it was an accredited lab but
admitted that she had not seen Cellmarks calibrations or work in connection with the analysis
at issue. Asked about potential degradation of the DNA sample, Lambatos indicated that while
technically possible, she strongly doubted degradation had occurred for two reasons. First, the
ISP lab likely would have noticed the degradation before sending the evidence to Cellmark.
Second, Lambatos noted that the data making up the DNA profle would exhibit certain telltale
signs if the sample had been degraded: the visual representation of the DNA sequence would
exhibit specifc patterns of degradation, which she didnt see any evidence of from looking at
the profle that Cellmark produced.
When Lambatos fnished testifying, the defense moved to exclude her testimony regarding
the Cellmark testing, arguing that it violated the Confrontation Clause. Te objection was over-
ruled, and the defendant was convicted.
Direct Appeal
On appeal to the Illinois Supreme Court the defendant again argued that Lambatoss testimony
violated his Confrontation Clause rights. Te Illinois court disagreed, reasoning that because
the Cellmark report supplied a basis for Lambatoss opinion it was not admitted for the truth of
the matter asserted. Te United States Supreme Court granted certiorari.
The U.S. Supreme Courts Decision in Williams
Te United States Supreme Court afrmed the judgment below. Justice Alito wrote the plural-
ity opinion, which was joined by Chief Justice Roberts and Justices Kennedy and Breyer. Te
plurality determined that no Confrontation Clause violation occurred for two reasons. First, the
Cellmark report fell outside of the scope of the Confrontation Clause because it was not used for
the truth of the matter asserted. Second, no Confrontation Clause violation occurred because
the report was non-testimonial. Justice Tomas concurred in judgment only. He agreed that
the report was non-testimonial, though he reached this conclusion through diferent reasoning.
Tomas disagreed with the pluralitys conclusion that the report was not used for the truth for
the matter asserted. Justices Kagan, Scalia, Ginsburg, and Sotomayor dissented. Te sections
below explore the opinions in more detail.
The Plurality
Te plurality frst determined that the Cellmark report fell outside of the scope of the Confron-
tation Clause because it was not used for the truth of the matter asserted. Te plurality noted
that for more than two hundred years evidence law has allowed testimony like that at issue in
the case before it:
Under settled evidence law, an expert may express an opinion that is based on
facts that the expert assumes, but does not know, to be true. It is then up to the
party who calls the expert to introduce other evidence establishing the facts
assumed by the expert. While it was once the practice for an expert who based
an opinion on assumed facts to testify in the form of an answer to a hypothetical
question, modern practice does not demand this formality and, in appropriate
cases, permits an expert to explain the facts on which his or her opinion is based
without testifying to the truth of those facts. Tat is precisely what occurred in
this case, and we should not lightly swee[p] away an accepted rule governing the
admission of scientifc evidence.
8
Concluding that this type of expert testimony does not violate the Confrontation Clause, the
plurality explained that the clause has no application to out-of-court statements that are not
ofered to prove the truth of the matter asserted.
9
Te plurality distinguished the Courts prior decisions in Bullcoming and Melendez-Diaz,
characterizing them as involving forensic reports that were introduced for the truth of the mat-
ter asserted: in Bullcoming, that the defendants blood alcohol level exceeded the legal limit;
in Melendez-Diaz, that the substance in question was cocaine.
10
Here, however, the plurality
explained, An expert witness referred to the report not to prove the truth of the matter asserted
in the report, i.e., that the report contained an accurate profle of the perpetrators DNA, but
only to establish that the report contained a DNA profle that matched the DNA profle deduced
from petitioners blood.
11
As a second independent basis for its decision, the plurality concluded that even if the report
had been used for the truth of the matter asserted, no Confrontation Clause violation occurred
8. Williams, 567 U.S. ___, 132 S.Ct. 610, slip op at 23 (citation and quotation omitted).
9. Id. at 3.
10. Id. at 25.
11. Id. at 26.
because the report was non-testimonial. Te plurality determined that the Confrontation
Clause was aimed at addressing two abuses: (1) out-of-court statements that have a primary
purpose of accusing a targeted individual of criminal conduct and (2) formalized statements,
such as afdavits and confessions.
12
Te plurality noted that in Melendez-Diaz and Bullcom-
ing the forensic reports at issue violated the Confrontation Clause on both grounds: they were
afdavits made for the purpose of proving the guilt of an arrested defendant and were done
when no emergency was ongoing.
13
It found the Cellmark report distinguishable on both points.
Te plurality reasoned that the Cellmark report was produced before a suspect was identifed,
was not sought to obtain evidence against the defendant (who was not even under suspicion at
the time) but rather to catch a rapist who was on the loose, and was not inherently inculpatory.
14

Te plurality explained:
[T]he primary purpose of the Cellmark report... was not to accuse [the defen-
dant] or to create evidence for use at trial. When the ISP lab sent the sample to
Cellmark, its primary purpose was to catch a dangerous rapist who was still at
large, not to obtain evidence for use against [the defendant], who was neither in
custody nor under suspicion at that time. Similarly, no one at Cellmark could
have possibly known that the profle that it produced would turn out to incul-
pate [the defendant]or for that matter, anyone else whose DNA profle was in
a law enforcement database. Under these circumstances, there was no prospect
of fabrication and no incentive to produce anything other than a scientifcally
sound and reliable profle.
15
Te plurality continued, noting that DNA profles have the ability to incriminate and exon-
erate and that the analysts preparing them generally have no way of knowing whether it will
turn out to be incriminating or exoneratingor both.
16
Te plurality went on to note that the
knowledge that defects in a DNA profle may often be detected from the profle itself provides a
further safeguard.
17
Te plurality noted that Lambatos testifed that she would have been able
to determine whether the Cellmark sample had been degraded. Moreover, it concluded, there
was no real chance that sample contamination, switching, mislabeling, or fraud could have
occurred in the Cellmark analysis. Te plurality explained:
At the time of the testing, [the defendant] had not yet been identifed as a sus-
pect, and there is no suggestion that anyone at Cellmark had a sample of his
DNA to swap in by malice or mistake. And given the complexity of the DNA
molecule, it is inconceivable that shoddy work could somehow produce a DNA
profle that just so happened to have the precise genetic makeup of [the defen-
dant], who just so happened to be picked out of a lineup by the victim. Te
prospect is beyond fanciful.
18
12. Id. at 29.
13. Id. at 3031.
14. Slip op. at 3.
15. Id. at 31.
16. Id. at 32.
17. Id.
18. Id. at 3233.
Finally, the plurality noted that if these types of reports could not be admitted without call-
ing the analysts who prepared them, economic pressures would force prosecutors to build their
cases on less reliable forms of evidence, such as eyewitness testimony.
19
Thomass Concurrence
Justice Tomas concurred in the judgment only. He disagreed with that portion of the plurality
opinion concluding that the report was not used for the truth for the matter asserted, stating,
Tere is no meaningful distinction between disclosing an out-of-court statement so that a fact-
fnder may evaluate the experts opinion and disclosing that statement for its truth.
20
However,
Tomas agreed with the plurality that the report was non-testimonial, though he reached this
conclusion through diferent reasoning. According to Tomas, the report was non-testimonial
because it lacked the requisite formality and solemnity. He noted:
Nowhere does the report attest that its statements accurately refect the DNA
testing processes used or the results obtained. Te report is signed by two
reviewers, but they neither purport to have performed the DNA testing nor
certify the accuracy of those who did. And, although the report was produced at
the request of law enforcement, it was not the product of any sort of formalized
dialogue resembling custodial interrogation.
21
Tomas distinguished Melendez-Diaz, noting that the report there was sworn before a notary
by the preparing analyst.
22
As to the report in Bullcoming, he noted that though it was unsworn,
it included a Certifcate of Analysis signed by the analyst who performed the testing.
23
By
contrast, he noted, the Cellmark report certifes nothing.
24
He continued: Tat distinction
is constitutionally signifcant because the scope of the confrontation right is properly limited
to extrajudicial statements similar in solemnity to the Marian examination practices that the
Confrontation Clause was designed to prevent.
25
Finally, lest a clever declarant think that he or
she can evade the Constitution under Tomass theory by making his or her report less formal,
Tomas precluded that option, stating that informal statements are also testimonial when
made to evade the formalized process previously used to generate them.
26
No other Justice
adopted Tomass test for testimonial evidence.
Breyers Concurrence
Justice Breyer joined the plurality opinion but wrote a separate concurring opinion, arguing for
additional briefng and reargument on grounds that neither the plurality nor the dissent ade-
quately addresses how the Confrontation Clause applies to forensic reports. He explained:
Tis case raises a question that I believe neither the plurality nor the dissent
answers adequately: How does the Confrontation Clause apply to the panoply
19. Id. at 4.
20. Slip op., Tomas, J., concurring at 3.
21. Id. at 9 (citations omitted).
22. Id.
23. Id.
24. Id. at 10.
25. Slip op., Tomas, J., concurring at 10.
26. Id. at 9 n.5.
of crime laboratory reports and underlying technical statements written by (or
otherwise made by) laboratory technicians? In this context, what, if any, are the
outer limits of the testimonial statements rule set forth in Crawfordv. Wash-
ington, 541 U.S. 36 (2004)?
27
Allowing that the pluralitys rule was artifcial, Breyer determined that the dissent did not
ofer a viable alternative.
28
He noted that if the traditional basis of opinion rule were aban-
doned, there would seem often to be no logical stopping place between requiring the prosecu-
tion to call as a witness one of the laboratory experts who worked on the matter and requiring
the prosecution to call all of the laboratory experts who did so.
29
He noted that laboratory
experts regularly rely on technical statements and other experts results to form their own
opinions and that, in reality, the introduction of a laboratory report involves layer upon layer
of technical statements (express or implied) made by one expert and relied upon by another.
30

In an appendix, Breyer laid out typical lab procedures, suggesting that anywhere from six to
twelve or more technicians might be involved in a single DNA report. Breyer found that neither
the plurality nor the dissent adequately explained how Crawford applies to such forensic reports
and the underlying technical statements made by laboratory technicians. He further noted the
pressing nature of the question:
Answering... [this] question..., and doing so soon, is important. Trial judges
in both federal and state courts apply and interpret hearsay rules as part of their
daily trial work. Te trial of criminal cases makes up a large portion of that
work. And laboratory reports frequently constitute a portion of the evidence
in ordinary criminal trials. Obviously, judges, prosecutors, and defense lawyers
have to know, in as defnitive a form as possible, what the Constitution requires
so that they can try their cases accordingly.
31
For these reasons, Breyer argued for additional briefng and reargument.
The Dissent
Justice Kagan wrote the dissenting opinion and, as noted above, was joined by Justices Scalia,
Ginsburg, and Sotomayor. Te dissent found the case indistinguishable from Bullcoming and
Melendez-Diaz. Te specifc aspect of Lambatoss testimony that troubled the dissent was the
fact that Lambatos, not a Cellmark employee, informed the factfnder that the testing of L.J.s
vaginal swabs had produced a male DNA profle implicating the defendant.
32
Kagan explained:
Have we not already decided this case? Lambatoss testimony is functionally
identical to the surrogate testimony that New Mexico profered in Bullcoming,
which did nothing to cure the problem identifed in Melendez-Diaz (which, for
its part, straightforwardly applied our decision in Crawford). Like the surrogate
witness in Bullcoming, Lambatos could not convey what [the actual analyst]
27. Slip op., Breyer, J., concurring at 1.
28. Id. at 3.
29. Id.
30. Id. at 4.
31. Id. at 7.
32. Slip op., Kagan, J., dissenting at 7.
knew or observed about the events..., i.e., the particular test and testing
process he employed. Nor could such surrogate testimony expose any lapses or
lies on the testing analysts part. Like the lawyers in Melendez-Diaz and Bull-
coming, Williamss attorney could not ask questions about that analysts prof-
ciency, the care he took in performing his work, and his veracity. He could not
probe whether the analyst had tested the wrong vial, inverted the labels on the
samples, committed some more technical error, or simply made up the results.
Indeed, Williamss lawyer was even more hamstrung than Bullcomings. At least
the surrogate witness in Bullcoming worked at the relevant laboratory and was
familiar with its procedures. Tat is not true of Lambatos: She had no knowledge
at all of Cellmarks operations. Indeed, for all the record discloses, she may never
have set foot in Cellmarks laboratory.
33
Kagan scofed at the pluralitys not for the truth rationale, reasoning that the use of the Cell-
mark report was bound up with its truth.
34
In Kagans view, Lambatos did not merely assume
that the Cellmark DNA profle came from L.J.s vaginal swabs but, rather, afrmed, without
qualifcation, that the Cellmark report showed a male DNA profle found in semen from the
vaginal swabs of [L.J.].
35
Signifcantly, Kagan continued:
Had she done otherwise, this case would be diferent. Tere was nothing wrong
with Lambatoss testifying that two DNA proflesthe one shown in the Cell-
mark report and the one derived from Williamss bloodmatched each other;
that was a straightforward application of Lambatoss expertise. Similarly, Lam-
batos could have added that if the Cellmark report resulted from scientifcally
sound testing of L.J.s vaginal swab, then it would link Williams to the assault.
What Lambatos could not do was what she did: indicate that the Cellmark
report was produced in this way by saying that L.J.s vaginal swab contained
DNA matching Williamss. By testifying in that manner, Lambatos became just
like the surrogate witness in Bullcominga person knowing nothing about the
particular test and testing process, but vouching for them regardless. We have
held that the Confrontation Clause requires something more.
36
As to the pluralitys rationale that the report was non-testimonial because it was not prepared
for the primary purpose of accusing a targeted individual, Kagan derided, Where that test
comes from is anyones guess.
37
Kagan also rejected the pluralitys suggestion that the report
was prepared to respond to an ongoing emergency and that it was inherently reliable. Finally,
Kagan rejected Tomass proposed approach.
33. Id. at 78 (citations and quotations omitted).
34. Id. at 12.
35. Id.
36. Id. at 1213 (footnote and citation omitted).
37. Id. at 18.
Williamss Implications for North Carolina Criminal Cases
Whats the Law?
As indicated above, Williams was a plurality opinion with Tomas concurring in judgment only.
In this scenario, the narrowest rationale supporting the holding of the case prevails.
38
Consider-
ing Williams, however, it is not clear which rationale supporting the holding is the narrowest.
Recall that the four-Justice plurality found that no confrontation violation occurred for two
reasons: that the report was not used for the truth of the matter asserted and that it was non-
testimonial. Assuming that the not for the truth rationale could even qualify as the narrow-
est ground supporting the holding given that it was expressly rejected by Tomas, it is broader
than the non-testimonial approach. Te not for the truth rationale would allow in all forensic
reports used as the basis of a testifying experts opinion. Te non-testimonial approach would
allow in only those reports that qualify as non-testimonial. Recall, also, that the plurality and
Tomas did not agree as to why the Cellmark report was non-testimonial. Te plurality con-
cluded that the report was non-testimonial because it was not accusatory, was produced when
the perpetrator was at large and before the defendant was under suspicion, and was not inher-
ently incriminatory. Tomas, on the other hand, concluded that the report was non-testimonial
because it lacked sufcient formality and solemnity. Although these rationales overlapped in
this particular case, it is not clear that one is broader than the other. Tus, Williams might
present a situation where rather than having broader and narrower opinions, the opinions are
just diferent. If that is the case, the decision will not stand for a lot more than as the resolution
of this particular dispute and possibly others involving very similar facts. Specifcally, that no
Confrontation Clause violation occurs when (1) a testifying expert states that she found a match
between two DNA profles and that one of the profles was produced from certain evidence,
(2) the testifying expert was not involved in producing the profle, (3) the profle was produced
before the defendant was identifed as a suspect, and (4) the analyst who did the testing did not
have a matching profle for comparison. Amplifying the uncertainty of the cases impact is the
obvious philosophical schism at the high Court regarding the parameters of the new Craw-
ford rule. With Williams, the four dissenters in Melendez-Diaz and Bullcoming are now in the
plurality, able to capture Tomass ffth vote as to the holding but without support to overrule or
clearly limit those decisions. With no reason to suspect that this confict will be soon resolved,
more uncertainty is the only certainty.
What about Existing N.C. Appellate Cases?
In North Carolina, a host of post-Crawford appellate cases hold that no confrontation violation
occurs when a substitute analyst relies on forensic reports done by non-testifying analysts.
39

Tese cases rely on the rationale that the reports were not admitted for their truth but, rather, as
the basis of the testifying experts opinion. Tis rationale, however, was rejected by fve members
of the Court in Williams, and thus these cases, while not technically overruled, stand on very
shaky ground. Tat does not mean that the cases will necessarily come out diferentlyafter
38. Marks v. United States, 430 U.S. 188, 193 (1977) (when no single rationale supporting the result
gets fve votes, the holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds (quotation omitted)).
39. Smith, Understanding the New Confrontation Clause Analysis, supra note 3, at 18&n.89 (discuss-
ing these cases).
all, Williams involved this exact type of testimony and no confrontation violation was found.
Te point is that the rationale of the existing North Carolina cases is likely to be held invalid.
It would thus be a strategic blunder for the State to rely on this ground for admissibility and for
the defense to fail to contest reliance on this authority.
Does the Fact that Williams Was a Bench Trial Matter?
In the context of discussing the not for the truth rationalea rationale that did not fnd
support from fve Justicesthe Williams plurality emphasized the ability of the trial judge as
factfnder to parse out which portions of Lambatoss testimony were ofered for the truth versus
as a basis of her opinion. However, the plurality went on to clarify: We do not suggest that the
Confrontation Clause applies diferently depending on the identity of the factfnder.
40
Tus, the
fact that Williams was a bench trial would seem to have no signifcance in the confrontation
analysis.
Are N.C.s Notice and Demand Statutes Afected by Williams?
No. Under those statutes, the State can procure a waiver of the defendants confrontation rights
by properly serving the defendant with notice of its intent to introduce into evidence a forensic
report without the presence of the preparer. If the defendant fails to object within a specifed
period of time, the defendant is deemed to have waived his or her confrontation rights. However,
if the defendant lodges a timely objection, no waiver occurs. No such statute was at issue in Wil-
liams, and none of the opinions mentioned them. Williams thus has no impact of the validity of
these statutes.
41
Does Williams Afect Melendez-Diaz and Bullcoming?
No clear reasoning emerged from Williams, and it is not certain what if any precedential value
the case will have. Melendez-Diaz and Bullcoming are still valid, but Williams seems to have
limited them in some way. As Justice Kagan put it in her dissent, Melendez-Diaz and Bullcoming
apparently no longer mean all that they say. Yet no one can tell in what way or to what extent
they are altered because no proposed limitation commands the support of a majority.
42
At a
minimum, Williams seems to have carved out an exception to those cases that would apply to
situations that track Williamss particular fact pattern: while testifying that she found a match
between two DNA profles, an expert states that one of the profles was produced from certain
evidence; the testifying expert was not involved in producing that profle; it was produced before
the defendant was identifed as a suspect, and the analyst who did the testing did not have a
matching profle for comparison.
What Does Williams Mean for Multi-Analyst Cases?
Williams was a multi-analyst case in which no less than four analysts were involved in the test-
ing (the Cellmark analyst, Hapack, Abbinanti, and Lambatos). Tomass opinion suggests that in
fact two Cellmark analysts were involved.
43
In his concurring opinion, Justice Breyer posits that
40. Slip op. at 19 n.4.
41. For more information about North Carolinas notice and demand statutes, see Smith, Understand-
ing the New Confrontation Analysis, supra note 3, at pp. 2126.
43. Slip op., Tomas, J., concurring at 9 (noting that the report was signed by two reviewers).
in the typical case involving DNA analysis as many as twelve analysts may be involved.
44
Given
the fractured nature of the case and its questionable value as precedent, how should multi-
analyst cases be litigated? Tis section explores the possibilities.
The Gold Standard: The Prosecution Calls All of the Analysts
In Williams, one analyst (Hapack) determined that the swabs contained semen. A second ana-
lyst (a Cellmark employee) produced a DNA profle from the semen. A third analyst (Abbinanti)
produced a DNA profle from the defendants blood sample. And a fourth analyst (Lambatos)
compared the two profles. Te confrontation issue arose in Williams because although the
prosecution called analysts one, three, and four, it did not call analyst two. Had analyst two been
called, a confrontation issue would not have arisen. Tus, the gold standard for the State in a
multi-analyst case is to call as witnesses all of the analysts involved in the testing.
For Risk Takers: Rely on Williams
In Williams, the State did not follow the gold standard approach and the conviction was upheld.
Given the fractured nature of the decision and its questionable value as precedent, a risk-averse
prosecutor will not be willing to rely on Williams in an important case. But even if the prosecu-
tor is a risk taker, it is not clear how many analysts the prosecution can do without.
45
In Wil-
liams, only one analyst was missing. It is not clear that Williams would have come out the same
way if, for example, Lambatos had been the only analyst to testify.
When One of the Analysts Is Unavailable
Situations will arise in which it will not be possible for the prosecutor to call all of the analysts,
even if he or she wants to do so. Tis could occur, for example, if one of the original analysts is
deceased or serving National Guard duty abroad. In such a situation, the prosecution has a few
possible alternatives. A discussion of each follows.
Retesting. Te best option for the State when an analyst is unavailable is to have the evidence
retested and to call the analyst who does the retesting to testify at trial. If that option can be
taken, there will be no confict with the Confrontation Clause.
Substitute Analysts. In situations where the relevant lab lacks capacity to retest or the evidence
has been consumed or degraded such that retesting is not possible, the prosecution has little
choice other than to call a substitute analyst. As has been noted, because of the fractured nature
of the opinion and its questionable value as precedent, Williams did not advance our under-
standing of the permissible scope of substitute analyst testimony. As also noted, some risk-
taking prosecutors may choose to present their case, as was done in Williams, and hope for the
best. A modifcation to that approach, however, is worth examining.
Te dissent objected to that portion of Lambatoss testimony afrmatively stating that Cell-
mark generated the DNA profle from the semen on L.J.s swab. But even the dissenters would
have approved of Lambatoss testimony if she had merely opined that the DNA profle produced
by Cellmark matched that produced by the ISP lab but had not commented on the source of the
44. Slip op., Breyer, J., concurring at 5 & App. A.
45. Slip op., Breyer, J., concurring at 4 (writing separately to emphasize that neither the plurality opin-
ion nor Tomass concurring opinion gives adequate guidance on how to deal with multi-analyst cases);
slip op., Kagan, J., dissenting at 18n.4 (noting that none of the Courts cases addresses the issue of how
many analysts must be called to testify regarding a particular report).
DNA (from L.J.s vaginal swabs). Tus, a majority of the Court would appear to approve of the
following testimony:
Q: Did you develop a match between the DNA profle provided by the Cellmark
analyst and DNA profle provided by Ms. Abbinanti?
A: Yes, I did.
46
Furthermore, Kagan stated that Lambatos could have added that if the Cellmark report
resulted from scientifcally sound testing of L.J.s vaginal swab, then it would link Williams to
the assault.
47
Tis could be read as suggesting that careful direct-examination may render the
testimony consistent with the Confrontation Clause. But such a statement should be qualifed
in the strongest possible way: it is not the holding of the case; it is a proposition gleaned from a
fractured, confusing decision of questionable precedential value.
Even if this testimony is admissible, there remains the issue of authentication, which is nec-
essary to establish its relevance.
48
Absent the missing analyst, the prosecution could possibly
authenticate the DNA profle through careful chain of custody evidence.
49
Chain of custody
information, of course, is itself testimonial and therefore requires a live witness.
50
Even if chain of custody is established, evidence Rule403 might bar admissibility.
51
In addi-
tion, as a practical matter the defense may be able to severely undercut the value of the evidence
through skillful cross-examination that undermines key assumptions supporting the experts
opinion (such as the provenance of the sample and the quality of the testing).
Forgoing the Forensic Evidence. Te option of forgoing forensic evidence was foreshadowed in
the opinions of the plurality and Justice Breyer.
52
Clearly there will be no Confrontation Clause
issue if the State abandons the forensic evidence.
What Does Williams Mean for Single-Analyst Cases?
Some forensic tests typically involve only one analyst.
53
Te gold standard for these cases is the
same as for multi-analyst cases: for the prosecution to call the original analyst. When that is
not possible, retesting is the next best option, as it is for multi-analyst cases. Where the State
does not wish to forgo using the evidence and neither calling the original analyst nor retesting is
feasible, the question becomes: can a substitute analyst testify? Assuming that Williams ends up
46. Slip op. at 1718; slip op., Kagan, J., dissenting at 12 (Tere was nothing wrong with Lambatoss
testifying that two DNA proflesthe one shown in the Cellmark report and the one derived from Wil-
liamss bloodmatched each other.).
48. Slip op. at 24 (Of course, Lambatos opinion would have lacked probative value if the prosecution
had not introduced other evidence to establish the provenance of the [DNA] profles...).
49. In Williams, the plurality thought this occurred. Slip op. at 20n.6 &2223 (noting that in Wil-
liams the foundational fact that one of the profles came from the defendant and that the other came
from the semen on the swabs was established by chain of custody information).
50. Smith, Understanding the New Confrontation Analysis, supra note 3 at 17.
51. See, e.g., State v. King, No. 385A11 (N.C. fled June 14, 2012) (trial court did not abuse its discretion
by excluding the States expert testimony regarding repressed memory under Rule403).
52. Slip op. at 4; slip op., Breyer, J., concurring at 13.
53. Slip op. at 31 (noting that drug tests and tests to determine blood-alcohol level are generally per-
formed by a single analyst).
having some small value in the multi-analyst case, its value is likely to be even more attenuated
in the single-analyst scenario. Williams involved a scenario in which three of the four ana-
lysts involved actually testifed at trial. If a single analyst is unavailable in a single-analyst case,
procuring even one witness who was actually involved in the testing will be impossible, and
thus this scenario is signifcantly diferent from that in Williams. Nevertheless, some may rely
on the language noted above from Justice Kagans dissent to suggest a possible path for admis-
sibility: Lambatos could have added that if the Cellmark report resulted from scientifcally
sound testing of L.J.s vaginal swab, then it would link Williams to the assault.
54
Suppose, for
example, that the original analyst in a drug case (AnalystA) is unavailable and the evidence was
consumed in testing. Suppose further that the State ofers an evidence custodian from the lab
who establishes chain of custody of the tested sample and that this evidence is deemed sufcient
to establish the provenance of the test results.
55
Te judge then qualifes AnalystB as an expert
substitute analyst. AnalystB works in the same lab that did the testing. AnalystB testifes that
lab protocol requires that fve specifc tests must be done to determine whether a substance is
cocaine. AnalystB then describes those tests and their implications. AnalystB then testifes:
A: If Analyst A in fact performed the tests as indicated, if they were performed
according to lab protocol and in a scientifcally sound manner, and if AnalystA
properly recorded the results of the tests that were done, I would conclude, based
on these results reported, that the substance was cocaine.
Because even the Williams dissenters would appear to approve of this testimony, the argument
would seem to have legs. But the qualifer noted above as to the related argument in the multi-
analyst discussion applies here as well: this is not the holding of the case; it is a proposition
gleaned from a fractured, confusing decision of limited procedural value. Of course, even if this
testimony were permissible under the Confrontation Clause, the trial judge might exclude it
under Rule403.
56
And even if it is not excluded under the evidence rules, the defense would have
a feldday on cross-examination, with questioning along these lines:
Q: Can you personally verify that the fve required tests were done?
A: No.
Q: Can you personally verify that the tests were done according to lab protocol?
A: No.
Q: Can you personally verify that AnalystA properly recorded the tests?
A: No.
Tus, even if the testimony is permissibleand that is a big ifit is not clear that it would ulti-
mately aid the prosecution.
55. See slip op. at 20 n.6& 2223 (noting that in Williams the foundational fact that one of the profles
came from the defendant and that the other came from the semen on the swabs was established by chain
of custody information).
56. See, e.g., King, No. 385A11 (trial court did not abuse its discretion by excluding the States expert
testimony regarding repressed memory under Rule403).
Tis bulletin is published and posted online by the School of Government to address issues of interest to government
ofcials. Tis publication is for educational and informational use and may be used for those purposes without permission by
providing acknowledgment of its source. Use of this publication for commercial purposes is prohibited.
To browse a complete catalog of School of Government publications, please visit the Schools website at www.sog.unc.edu
or contact the Publications Division, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill,
ChapelHill, NC 27599-3330; e-mail [email protected]; telephone 919.966.4119; or fax 919.962.2707.
Does Williams Afect Other Not for the Truth Decisions?
Crawford noted that the use of testimonial statements for purposes other than establishing the
truth of the matter asserted does not violate the Confrontation Clause.
57
Since Crawford, courts
have found that when evidence is admitted for a purpose other than the truth of the matter
asserted, it falls outside of the scope of the Crawford rule. Such purposes have included
basis of an experts opinion,
impeachment, and
corroboration.
58
Te basis of an experts opinion exception was at the heart of Williams, and this frst rationale
ofered by the plurality failed to secure at least fve votes. It thus is of questionable viability.
However, all of the Justices appear to agree that evidence ofered for impeachment purposes still
falls outside of the Confrontation Clause.
59
It is not clear whether they will come to the same
conclusion regarding corroborative evidence.
Whats on the Horizon?
First, more litigation. We still do not have clear direction from the high Court on how to deal
with substitute analysts. Tus, there will be more litigation as the lower courts try to sort out
the law. Second, more fractured opinions from the high Court. Crawford was decided in 2004.
Since then the Courts composition has changed, and Justice Scalias stronghold on Confronta-
tion Clause doctrine has eroded, evidenced by, among other things, his now repeated position in
the dissent. Furthermore, some members of the Court are open to reconsidering the issues.
60
All
of this suggests that the confict among the Justices will not soon be resolved.
57. Crawford, 541 U.S. at 5960n.9.
58. Smith, Understanding the New Confrontation Analysis, supra note 3 at 1820.
59. Slip op. at 23; slip op., Tomas, J., concurring at 3 (calling this a legitimate nonhearsay purpose);
slip op., Kagan, J., dissenting at 910.
60. Slip op. at 29 n.13 (Experience might yet show that the holdings in those cases should be reconsid-
ered for the reasons, among others, expressed in the dissents the decisions produced.); slip op., Breyer, J.,
concurring at 78 (advocating for reargument so that the Court can consider any necessary modifcation
of statements in earlier Crawford cases).
2/21/2013
1
Lab Reports and the Legal
Issues Surrounding Them
Sarah Rackley Olson, IDS Forensic
Resource Counsel
Alyson Grine, Defender Educator
2/21/2013
2
Lab Reports
Getting Lab Reports
http://www.ncids.com/forensic/motions/moti
ons.shtml
Make sure you have underlying data, not just
the final report
More than just the report:
Communication logs
Corrective actions (in materials)
Audits (in materials)
Certification Exam results
Lab Legal Counsel: J oy Strickland
[email protected], (919) 662-4509 ext.
4400
2/21/2013
3
Certification Exams
Certification Exams
Forensic Sciences Act of 2011 requires
State Crime Lab analysts become certified
http://www.ncids.com/forensic/sbi/analyst_ce
rtification/certification.shtml
Several analysts failed their certification
exams one or more times
Third round of ABC certification exams
given mid-December, now 98.7% of
eligible analysts are certified
Understanding Lab Reports
What test results do you see?
What tests have been performed?
What tests have not been performed?
Ask: Do I understand what this test can
and cannot prove?
http://www.ncids.com/forensic/resources/
resources.shtml
2/21/2013
4
New lab procedures
State Crime Lab (SBI lab) new procedures
went into effect Sept. 17, 2012
http://www.ncdoj.gov/About-DOJ /State-Bureau-of-
Investigation/Crime-Lab/ISO-Procedures.aspx
Request lab procedures in discovery!!
Put into place without review by NC Forensic Science
Advisory Board
See comments of experts (in materials)
Local crime labs should be in the process of
seeking ISO accreditation
Presumptive vs. Confirmatory
Tests
Presumptive tests (aka screening tests,
preliminary tests or field tests)
Can establish the possibility that a specific substance
is present
Confirmatory tests
Can conclusively identify a specific substance
2/21/2013
5
Virtual CLE: Presumptive and
Confirmatory Forensic Tests
Lab Tours
2/21/2013
6
Lab Tours
Dates: April 26, J une 14 and J uly 12, 2013
(Regional Lab tour dates TBD)
RSVP: Stormie Forte - [email protected]
Working with Experts
Working with Experts
Database of experts:
http://www.ncids.com/forensic/experts/expert
s.shtml
Please provide feedback on experts
Guide to Working with Experts (in
materials)
Vetting an expert
Referral questions
Questions to ask during your first
conversation with the expert
2/21/2013
7
Confrontation Clause
Crawford v. Washington (2004)
Testimonial hearsay statement by
witness who is not subject to cross
at trial is not admissible
UNLESS:
1) Witness unavailable, and
2) Prior opportunity for cross
21
2/21/2013
8
Notice and Demand Statutes
Substitute Analyst
Testing Analyst
(not available at trial)
Testifying Analyst
Williams v. Illinois (USSC) (p. 24)
This is your brain after trying to figure out the holding.
2/21/2013
9
Admissibility of Expert Testimony
Howerton, 358 N.C. 440:
Method of proof is
sufficiently reliable
Witness is qualified as an
expert in that area
Experts testimony is
relevant
Revised Rule 702(a):
Testimony is based
upon sufficient facts or
data.
Testimony is product
of reliable principles
and methods.
Witness has applied
principles and methods
reliably to facts of case
Stay Informed!
Website: http://www.ncids.com/forensic
Blog: http://ncforensics.wordpress.com/
Twitter: @IDSforensics
Available for case consultation:
Sarah Rackley Olson
[email protected]
919-354-7217
DISCOVERY

Excerpts from Summaries of
Legislation on Criminal Discovery

1. Excerpt from 2004 Legislation Affecting Criminal Law and Procedure:
Summarizes open-file discovery law enacted by the 2004 NC General Assembly, which
significantly expanded criminal defendants statutory right to discovery

Summarizes limited changes to discovery law enacted by the 2007 NC General Assembly



The full summaries are available at www.sog.unc.edu/node/1791

administration
of justice
Number 2004/06 October 2004
2004 LEGISLATION AFFECTING CRIMINAL
LAW AND PROCEDURE
John Rubin

Criminal Discovery 2
Domestic Violence 8
Criminal Offenses 13
Criminal Procedure and Evidence 15
Motor Vehicles 16
Juveniles 18
Law Enforcement 19
Sentencing 19
Capital Punishment 19
Victims Rights 20
Collateral Consequences 21
Court Administration 21
Studies 23

The General Assembly enacted three major pieces of legislation in the field of criminal law
and procedure as well as numerous smaller acts. The General Assembly significantly
expanded the discovery rights of both the defense and prosecution in criminal cases. It
enacted a package of legislation recommended by the House Select Committee on Domestic
Violence, making changes that affect domestic violence prosecutions and criminal law
generally. And, it significantly increased the punishments for offenses involving the
controlled substance methamphetamine.
Each ratified act discussed here is identified by its chapter number in the session laws and
by the number of the original bill. When an act creates new sections in the General Statutes
(G.S.), the section number is given; however, the codifier of statutes may change that number
later. Copies of the bills may be viewed on the website for the General Assembly,
http://www.ncga.state.nc.us/.

John Rubin is a School of Government faculty member who specializes in criminal law and
procedure.
Administration of Justice Bulletin No. 2004/06 October 2004
2
Some of the material in this bulletin was drawn
from the forthcoming School of Government
publication NORTH CAROLINA LEGISLATION 2004. That
publication will be posted on the Schools web site at
http://ncinfo.iog.unc.edu/pubs/nclegis/
index.html and can be ordered from the Schools
publication sales office. Contact information for the
publications department is included on the last page of
this bulletin.
Criminal Discovery
A defendants right to pretrial discovery in cases
within the original jurisdiction of the superior court
(that is, felonies and misdemeanors joined with
felonies) has been limited to fairly narrow statutory
categories. The defendant was entitled to obtain
discovery of his or her own statements, statements of
codefendants, documents that the state intended to use
at trial or that belonged to the defendant, reports of
examinations and tests in connection with the case, and
statements of witnesses once the witness testified. The
defendants obligation to provide information to the
state has also been limited. A defendant had to turn
over documents and reports of examinations and tests
that he or she intended to introduce at trial but little
more. Both sides complained that criminal proceedings
amounted to trial by ambush.
Many district attorneys adopted open-file
discovery policies, allowing defendants access to
investigative and other materials beyond the statutory
categories. But, the decision to have an open-file
policy rested with individual district attorneys offices.
There also was not a uniform understanding of what
information a defendant could review under an open-
file policy; and, if a prosecutor failed to turn over
information covered by the policy but not legally
required, a defendant had little, if any, recourse.
To ensure greater openness in the discovery
process, S.L. 2004-154 (S 52) revises the statutory
discovery rights of both the defense and prosecution.
The procedure for obtaining discovery remains
essentially the same, but the categories of discoverable
information differ significantly. This bulletin
summarizes the new discovery provisions and provides
some guidance concerning how the changes may apply
in practice.
Applicability and Effective Date
G.S. 15A-901 continues to provide that the revised
discovery article (Ch. 15A, Art. 48) applies only to
cases within the superior courts original jurisdiction.
It does not apply to misdemeanors heard initially in
district court or appealed for trial de novo to superior
court. A defendant does not have the right to discovery
in those cases except to the extent guaranteed by the
United States and North Carolina Constitutions (a
defendant has the right to exculpatory evidence) or by
other statutes (for example, under G.S. 20-139.1(e), a
defendant has the right in impaired driving cases to a
copy of the record of the chemical analysis).
The changes become effective October 1, 2004,
and apply to cases in which the trial date set pursuant
to G.S. 7A-49.4 is on or after October 1, 2004. In other
words, in addition to future cases, the new discovery
provisions apply to pending cases in which the trial is
not set to commence before October 1. Thus, if the
trial is set for a date before October 1 but is continued
to a date after October 1, the new discovery provisions
may not apply. (A broader interpretation of the
effective-date language would be that the new
discovery provisions apply to cases in which the trial
has not actually commenced before October 1.)
What must the parties do to exercise their new
discovery rights in pending cases? For cases in which
the defendant is represented by counsel and the
probable cause hearing has not yet been held or
waived, the parties would have to comply with the
normal timelines for requesting discovery (for
defendants represented by counsel, within ten working
days of the probable cause hearing or waiver, and for
the prosecution within ten working days of when it
provides discovery in response to the defendants
request). In cases in which those dates have already
passed but the trial has not yet occurred, the parties
could not have complied with those timelines because
they had no right to request the broader discovery until
the acts effective date. The legislation does not set a
specific deadline or procedure to follow to obtain the
broader discovery in those cases, and probably the
safest course for the parties to take is to make a new
discovery request as soon after the acts effective date
as possible.
Basic Procedures
With minor revisions, G.S. 15A-902 continues to
establish the basic procedure for obtaining discovery.
The principal procedural changes do the following:
expand the circumstances in which a defense request
for discovery triggers reciprocal discovery rights by
the prosecution; allow the parties to apply ex parte for
a protective order limiting disclosure (in G.S. 15A-
908); modify the standard for obtaining sanctions (in
October 2004 Administration of Justice Bulletin No. 2004/06
3
G.S. 15A-910); and recognize explicitly that the parties
may waive the requirement of a written request for
discovery. There are additional procedural changes that
apply to specific categories of discovery (for example,
the disclosure of the identity of witnesses), which are
discussed below in connection with the particular
category of information.
Defense Discovery Requests. Under G.S. 15A-
902, the defendant ordinarily remains responsible for
initiating the discovery process by making a written
request that the prosecution voluntarily provide
discovery. A new provision, discussed below, waives
the requirement of a written request if the parties have
entered into a written agreement to that effect, but for
purposes of this discussion it is assumed there is no
written agreement in place. If dissatisfied with the
prosecutions response to the discovery request, the
defendant may file a motion with the court to compel
the requested discovery. If the court orders discovery
and the prosecution fails to comply, the defendant may
ask the court for sanctions. The time limit for making
an initial discovery request is the same as under prior
law. If the defendant is represented by counsel, the
defendant may as a matter of right request discovery
no later than the tenth working day after either the
probable cause hearing or the date the defendant
waives the hearing. (The time limits for unrepresented
defendants also remain the same as under prior law.)
G.S. 15A-902 continues to state that if the
prosecution voluntarily provides discovery in response
to a written request, the prosecution assumes the
obligation to provide discovery as if under order of the
court. (Revised G.S. 15A-903(b), which describes the
information the prosecution must provide in discovery,
reiterates this requirement.) An important consequence
of this principle is that without first obtaining a court
order compelling discovery, the defendant may request
sanctions for the prosecutions failure to provide
discovery.
Prosecution Discovery Requests. In most
respects, the same procedures apply to prosecution
discovery requests. The prosecution must make a
written request for discovery (unless there is a written
agreement waiving the requirement) and, if dissatisfied
with the response, must follow up with a motion to
compel discovery. If following a written request the
defendant voluntarily provides discovery or the court
orders discovery, the prosecution may seek sanctions
for non-compliance. As under prior law, the
prosecution must make its discovery request within ten
working days of when it provides discovery to the
defendant.
The prosecutions right to discovery differs in one
significant respect from the defendants rights. At least
in principle, the defendant controls whether the
prosecution obtains discovery, although in practice
most defendants will rarely exercise this right. As
under prior law, the prosecution has the right to
discovery from the defendant only if the defendant
requests discovery of the prosecution and either the
prosecution voluntarily furnishes the discovery in
response or the court compels discovery. (G.S. 15A-
905(c), which sets forth the new categories of
information that the defendant must provide to the
prosecution, reiterates that if the prosecution
voluntarily furnishes discovery in response to a written
request for discovery, the discovery is deemed to have
been made under court order and therefore triggers the
prosecutions reciprocal discovery rights; this language
does not change existing law, embodied in G.S. 15A-
902(b).) Consequently, if the defendant does not make
a written request for discovery, the prosecution has no
right to discovery from the defendant.
The circumstances in which a defendant opts not
to take advantage of discovery from the prosecution
should be rare, however. Under the revised statute, the
defendant must make an all-or-nothing decision about
discovery. If the defendant makes a written request for
any statutory discovery and the prosecution voluntarily
provides discovery or is ordered to do so by the court,
the prosecution gains full discovery rights. Previously,
a defendant could pick and choose which discovery
rights to afford the prosecution by selecting which
categories of discovery it wanted. For example, if the
defendant requested all of the discovery categories
from the prosecution except reports of examinations
and tests, the prosecution had no right to reciprocal
discovery of the defendants reports of examinations
and tests. The General Assembly accomplished this
change by providing that the prosecution is entitled to
the discovery set forth in each subsection of G.S. 15A-
905 if the court grants any relief sought by the
defendant under G.S. 15A-903, the section giving the
defendant discovery rights. Previously, each subsection
of G.S. 15A-905 was limited to the corresponding
subsection of G.S. 15A-903.
Written Agreements. Revised G.S. 15A-902(a)
and (b) recognize that a written request for discovery is
not required of either party if they have agreed in
writing to comply voluntarily with the statutory
discovery requirements. A written agreement, in other
words, takes the place of a written request. While the
provision allows the parties to enter into a written
agreement on a case-by-case basis, the main purpose of
the provision was to clarify the enforceability of
standing discovery agreements such as in Mecklenburg
County. There, the District Attorney and the Public
Defenders office have had an agreement to provide
4
discovery without a written request by the opposing
party, reducing the need for form discovery requests by
both sides. Because the state is a party in all criminal
prosecutions, a District Attorney should be able to
enter into such an agreement and bind the state in all
prosecutions in that district. Such an agreement would
have a more limited effect on defendants because a
Public Defender can act only on behalf of clients
represented by his or her office. In addition, because
the defendant is not the same party in each case, a
standing agreement would have to give Public
Defender clients the right to opt out if they wanted to
forego discovery of the prosecution and avoid
triggering reciprocal discovery.
Protective Orders. G.S. 15A-908(a) has allowed
either party to apply to the court, by written motion,
for a protective order protecting information from
disclosure for good cause, such as substantial risk to
any person of physical harm, intimidation, bribery,
economic reprisals, or unnecessary annoyance or
embarrassment. The statute is revised to provide that a
party may now apply ex parte for such an order. Under
the revised provision, if an ex parte protective order is
granted, the opposing party receives notice of entry of
the order but not the subject matter of the order. The
revised section does not specify any further
procedures, but the court should maintain under seal
the motion, order, and information protected by the
order in the event disclosure is required at trial or the
propriety of the order is challenged on appeal.
Sanctions. G.S. 15A-910 has provided that a party
may seek sanctions if the responding party has failed to
comply with an order for discovery, including
voluntary discovery deemed to be made under court
order. The revised section adds that the court, before
imposing sanctions, must consider both the materiality
of the subject matter and the totality of the
circumstances surrounding an alleged failure to
comply. The extent to which this new requirement
changes existing law is not clear.
Continuing Duty to Disclose. G.S. 15A-907,
which imposes a continuing duty to disclose
discoverable evidence, was not materially changed.
Defense Discovery Rights
The legislation completely rewrites G.S. 15A-903, the
section giving the defense discovery rights, by deleting
all of the former discovery categories and creating
three new ones: investigative and prosecutorial files,
expert witnesses, and lay witnesses.
Investigative and Prosecutorial Files. The most
significant discovery category is in new G.S. 15A-
903(a)(1), which provides that the state must make
available to the defendant the complete files of all law
enforcement and prosecutorial agencies involved in the
investigation of the crimes committed or the
prosecution of the defendant. This provision is
patterned after G.S. 15A-1415(f), revised in 1996 to
give defendants sentenced to death the right to open-
file discovery in post-conviction proceedings. The
pretrial and post-conviction provisions differ in one
important respect, however. In capital post-conviction
proceedings, the law provides no protection for the
prosecuting attorneys work product (although the state
may ask the court in the interests of justice to deny
access to some files). See State v. Bates, 348 N.C. 29
(1998). In contrast, revised G.S. 15A-904, discussed
below, continues to protect before trial materials
containing the prosecuting attorneys theories,
strategies, and other mental processes. The new pretrial
discovery provision also differs from the post-
conviction discovery provision in that the pretrial
provision does not provide that the states disclosure
obligation is to the extent allowed by law.
Interpreting this qualifying language in the context of
capital post-conviction proceedings, the North
Carolina Supreme Court in Bates held that the state is
not required to produce information that it is prohibited
by other laws from disclosing. Because this
qualification does not appear in the new pretrial
discovery provisions, the state would appear to be
obligated to disclose all evidence it obtains in the
investigation or prosecution of the defendant. (Even
under the capital post-conviction provision, the extent
to which the state is actually prohibited from
disclosing information, once the state comes into
possession of the information, is unclear.) There
conceivably could be some circumstances, however, in
which other laws might preempt the statutory
discovery requirements.
The new subsection provides a definition of the
term file, stating that it includes the defendants
statements, the codefendants statements, witness
statements, investigating officers notes, results of tests
and examinations, or any other matter or evidence
obtained during the investigation of the offenses
alleged to have been committed by the defendant.
This definition, particularly the last clause, makes it
clear that the defendant is not literally entitled to
review all of the files of an agency involved in the
investigation or prosecution of a defendant; rather, the
defendant is entitled to the complete agency files
concerning the investigation or prosecution of the
defendant. For example, a defendant would be entitled
to law-enforcement files concerning the investigation
of the offenses allegedly committed by the defendant
5
but would not necessarily be entitled to information
from other files, such as the investigating officers
personnel file or the files of investigations of other
offenses, unless the investigation or prosecution of the
defendant involved that information or other grounds
warranted disclosure, such as that the files contained
exculpatory evidence.
The definition of file repeats some of the
categories of information that the prosecution formerly
had to providethe defendants statements,
codefendants statements, and results of tests and
examinations. Presumably, the defendant (and the
prosecution to the extent it is entitled to discovery of
the defendants tests and examinations) would be
entitled to the data underlying the tests and
examinations, as under prior law. See State v.
Cunningham, 108 N.C. App. 185 (1992) (interpreting
prior discovery statute, which gave defendant right to
discover results and reports of tests and examinations,
court held that defendant was entitled to underlying
data).
The definition also adds new categories of
discoverable information. Thus, the prosecution must
turn over witness statements in pretrial discovery;
previously, the statute required the state to turn over
witness statements only after the witness testified and
only if the statement fell within the definition of
witness statement in repealed G.S. 15A-903(f)(5)
(requiring disclosure only of statements signed or
otherwise adopted or approved by the witness,
recorded statements, and substantially verbatim
transcriptions of statements). The prosecution also
must turn over officer notes; previously, the statute
required that an officers notes (as well as officer
reports) be turned over only to the extent they
contained information within specific statutory
discovery categories. The definition includes a catch-
all requirement that the state turn over any other matter
or evidence obtained during the investigation of the
offenses alleged to have been committed by the
defendant.
As under prior law, the defendant has the right to
inspect and obtain copies or photographs of
discoverable information and, under appropriate
safeguards, to test physical evidence. This language
tracks prior law. The subsection also states that oral
statements shall be in written or recorded form.
Previously, only oral statements of defendants and
codefendants had to be reduced to writing or recorded.
The new provision is not limited to defendants and
codefendants, and its reach is not clear.
What agencies files must the prosecution obtain
and make available for the defendants review? The
language of the statute both establishes the
prosecutions obligation and limits it, although there
may be lingering questions. The clearest way to
consider this issue may be to look at different types of
agencies.

1. Obviously, files within the prosecuting
district attorneys own office are subject to
the new discovery requirements.
2. The files of state and local law-enforcement
offices (as well as other district attorneys
offices) involved in investigating the
defendant are also subject to discovery.
Revised G.S. 15A-501 reinforces this
obligation, stating that following arrest of a
person for a felony, law enforcement has the
duty to make available to the prosecutor on a
timely and continuing basis all materials and
information acquired in the course of the
investigation. These requirements are similar
to the obligations the state had under the prior
discovery statute and under Brady v.
Maryland, 373 U.S. 83 (1963), the United
States Supreme Court decision requiring the
state to turn over exculpatory evidence. See
Kyles v. Whitley, 514 U.S. 419, 437 (1995)
(prosecutor has duty to learn of favorable
evidence known to others acting on
governments behalf in case); State v. Smith,
337 N.C. 658, 662 (1994) (under Brady,
prosecution deemed to have knowledge of
information in possession of law
enforcement); State v. Pigott, 320 N.C. 96,
102 (1987) (court holds under prior discovery
statute that prosecutor is obligated to turn
over discoverable information in possession
of those working in conjunction with him or
his office; photographs taken by law-
enforcement officer were subject to
discovery).
3. The files of state and local agencies that are
not law-enforcement or prosecutorial
agencies, such as schools and social services
departments, would appear to be exempt from
the statutory discovery procedures in most
circumstances. A defendant may still be
entitled to the information in some instances,
however. First, the disclosure requirements
would apply to materials obtained from other
agencies by law-enforcement or prosecutorial
agencies during the investigation of the
defendant. Second, in some circumstances a
defendant may have the right to obtain the
information directly from the agency in
possession of it, by subpoena or motion to the
6
court. See generally Pennsylvania v. Ritchie,
480 U.S. 39 (1987) (describing defendants
right to obtain records in possession of third
parties). Third, an agency could be so
involved in a criminal investigation that it
could be considered to be acting in a law-
enforcement capacity, and the portion of its
files pertaining to the investigation could
become subject to the statutory disclosure
requirements. Whether an agency has crossed
this line may be difficult to determine. See
generally State v. Morrell, 108 N.C. App. 465
(1993) (social worker representing abused
child acted as law-enforcement agent in
interviewing defendant, rendering
inadmissible custodial statements made to
worker without Miranda warnings); Martinez
v. Wainwright, 621 F.2d 184, 18688 (5th
Cir. 1980) (in case applying Brady v.
Maryland, court found that prosecution was
obligated to disclose evidence in medical
examiners possession; although not a law-
enforcement agency, medical examiners
office was participating in criminal
investigation).
4. Information collected by federal agencies may
be subject to disclosure in some
circumstances. The prosecution would be
obligated to turn over information that it or
state or local law-enforcement agencies
obtained from federal agencies (unless the
prosecution obtained a protective order).
When state and federal law-enforcement
agencies are engaged in a joint investigation
of the defendant, the prosecution also may
have an obligation to request information
obtained by the federal agency. Ultimately,
however, the prosecutions obligation to
obtain information from non-state agencies
would appear to be limited by the willingness
of the other agencies to provide it. See
generally State v. Crews, 296 N.C. 607
(1979) (prior discovery law obligated state to
produce information if within its possession,
custody, or control; materials within
possession of mental health center and social
services department were not subject to
statutory discovery where prosecution was
denied access to and had no power to obtain
information).

Expert Witnesses. Under new subsection (a)(2)
of G.S. 15A-903, the prosecution must give notice to
the defendant of any expert witness that it reasonably
expects to call as a witness at trial. Each such witness
must prepare, and the prosecution must furnish to the
defendant, a report of the results of any examinations
or tests, including the experts opinion and underlying
basis for that opinion. The expert also must provide his
or her curriculum vitae. The courts had interpreted the
prior discovery provisions as allowing trial courts to
require testifying experts for each side to prepare and
furnish reports of their findings to the other side. See
State v. East, 345 N.C. 535 (1997). The new provision
makes that practice an explicit requirement. The
specified information must be produced a reasonable
time before trial, as specified by the trial court.
Other Witnesses. Subsection (a)(3) of G.S. 15A-
903 provides that at the beginning of jury selection, the
state must provide to the defendant a list of all other
witnesses whom the state reasonably expects to call at
trial. Previously, trial judges often pressed the parties
to disclose their witnesses before jury selection, which
helped expedite the trial. The new subsection makes
this practice a requirement, subject to three exceptions.
First, the prosecution may omit names if it certifies in
writing and under seal to the court that disclosure may
subject the witnesses or others to physical or
substantial economic harm or coercion or that there is
other particularized compelling need. The statute does
not explicitly require court approval, but a prudent
prosecutor may want to obtain it. The omission of a
witnesss name without adequate cause could be
grounds for sanctions, including the witness being
precluded from testifying. Second, if the prosecution in
good faith did not list a witness because it did not
reasonably expect to call the witness, the statute does
not bar the prosecution from calling the witness. Third,
the court has the discretion to permit an undisclosed
witness to testify in the interests of justice.
Work Product Restrictions. The attorney work-
product doctrine is designed to protect the mental
processes of the attorney from outside interference and
provide a privileged area in which he can analyze and
prepare his clients case. State v. Hardy, 293 N.C.
105, 126 (1977). At its broadest, the doctrine has been
interpreted as protecting information collected by an
attorney and his or her agents in preparing the case,
including witness statements and other factual
information. See Hickman v. Taylor, 329 U.S. 495
(1947) (discussing doctrine in civil cases). At its core,
the doctrine is concerned with protecting the attorneys
mental impressions, opinions, conclusions, theories,
and strategies. See Hardy, 293 N.C. at 126. Former
G.S. 15A-904 reflected the broader version of the
work-product doctrine, although the statute did not
specifically mention the term. Id. (discussing statute
and doctrine). It allowed the state to withhold from the
7
defendant internal documents made by the prosecutor,
law enforcement, or others acting on the states behalf
in investigating or prosecuting the case unless the
document fell within certain discoverable categories
(for example, it contained the defendants statement).
Revised G.S. 15A-904 reflects the narrower version of
the doctrine. It continues to protect the prosecuting
attorneys mental processes while allowing the
defendant access to factual information collected by
the state.
The revised statute provides that the state may
withhold the following from discovery:

x written materials drafted by the prosecuting
attorney or the prosecuting attorneys legal
staff for their own use at trial, including
witness examinations, voir dire questions,
opening statements, and closing arguments;
x legal research; and
x records, correspondence, reports, memoranda,
or trial preparation interview notes prepared
by the prosecuting attorney or the prosecuting
attorneys legal staff to the extent they contain
the opinions, theories, strategies, or
conclusions of the prosecuting attorney or
prosecuting attorneys legal staff.

Thus, the revised statute no longer protects
materials prepared by non-legal staff or by personnel
not employed by the prosecutors office, such as law-
enforcement officers. It also does not protect evidence
or information obtained by a prosecutors office. For
example, interview notes reflecting a witnesss
statements, whether prepared by a law-enforcement
officer or a member of the prosecutors office, would
not be protected under the work-product provision;
however, notes made by the prosecutor or his or her
legal staff reflecting their theories, strategies, and the
like remain protected.
Prosecution Discovery Rights
The legislation significantly adds to the prosecutions
discovery rights in G.S. 15A-905, retaining the
previous two categories of discovery and adding three
new ones.
Documents and Reports of Examinations and
Tests. G.S. 15A-905(a) has given the state the right to
inspect and copy books, papers, photographs and other
tangible objects that the defendant intends to introduce
in evidence at trial. G.S. 15A-905(b) has given the
state the right to: (1) inspect and copy the results or
reports of physical or mental examinations or tests,
measurements, or experiments made in connection
with the case if the defendant intends to introduce them
at trial or they were prepared by and relate to the
testimony of a witness whom the defendant intends to
call at trial; and (2) test physical evidence, subject to
appropriate safeguards, if the defendant intends to
offer the evidence or tests or experiments made in
connection with the evidence. The legislation retains
these rights. The only change is that if the defendant
requests and obtains from the prosecution any
discovery authorized by G.S. 15A-903, the prosecution
is entitled to seek all of the discovery authorized by
G.S. 15A-905, not just the particular category of
discovery requested by the defendant (see Basic
Procedures, above).
Notice of Defenses. The first of three new
categories of prosecution discovery is in G.S. 15A-
905(c)(1). It requires the defendant to give notice of
the intent to offer at trial any of the following defenses:
alibi, duress, entrapment, insanity, mental infirmity,
diminished capacity, self-defense, accident,
automatism, involuntary intoxication, and voluntary
intoxication. The defendant must give this notice
within twenty working days after the date the case is
set for trial pursuant to G.S. 7A-49.4 or such other time
as set by the court. The notice is inadmissible against
the defendant at trial.
Conforming changes were made to G.S. 15A-959,
which contains a notice requirement for the defense of
insanity and the introduction of expert testimony
relating to a mental condition that bears on whether the
defendant had the mental state required for the offense
charged. Under amended G.S. 15A-959(a), if the
defendant intends to raise the defense of insanity, he or
she must comply with the time limits in revised G.S.
15A-905(c)(1); in cases not subject to G.S. 15A-
905(c)(1)that is, cases in which the defendant has
not requested discovery and the prosecution has no
reciprocal discovery rightsthe defendant must give
notice of the defense of insanity within a reasonable
time before trial. Likewise, under amended G.S. 15A-
959(b), if the case is not subject to G.S. 15A-905(c),
the defendant must give notice of the intent to use the
indicated expert testimony within a reasonable time
before trial; if the prosecution has reciprocal discovery
rights under G.S. 15A-905(c), the defendant must give
notice of the defenses listed in subsection (c)(1) and
notice of his or her expert witnesses as provided in
subsection (c)(2), discussed below.
For the defense of alibi, the court upon motion of
the state may order the defendant to disclose the
identity of his or her alibi witnesses two weeks before
trial. If the state opts to make the motion and the court
orders disclosure, the court must require the state to
8
disclose any rebuttal alibi witnesses no later than one
week before trial. The court may set different time
limits if the parties agree.
For defenses for which the burden is on the
defendant to persuade the jurynamely, duress,
entrapment, insanity, automatism, and involuntary
intoxicationthe revised statute states that the notice
of defense also must contain specific information as to
the nature and extent of the defense.
Expert and Other Witnesses. G.S. 15A-
905(c)(2) mirrors G.S. 15A-903(a)(2), discussed
above, which gives the defendant the right to discovery
of the states expert witnesses. It requires the defendant
to give notice to the state of the expert witnesses he or
she reasonably expects to call at trial and to provide
the state with a report by each such witness and other
supporting information. The defendant must produce
the information within a reasonable time before trial,
as specified by the trial court.
Likewise, G.S. 15A-905(c)(3) mirrors G.S. 15A-
903(a)(3). It provides that at the beginning of jury
selection, the defendant must provide the state with a
list of all other witnesses whom the defendant
reasonably expects to call at trial. The subsection sets
forth the same circumstances in which non-disclosure
is permitted.
Work Product Restrictions. G.S. 15A-906,
which protects the defendants work product, was
not changed. It reflects that the defendants discovery
obligations, although expanded, remain narrower than
the prosecutions. Thus, under G.S. 15A-905, the
defendant must provide certain categories of
information to the state, not his or her complete files.
G.S. 15A-906 recognizes that internal defense
documents outside these categories are not subject to
discovery.
Domestic Violence
The General Assembly passed a package of legislation
addressing domestic violence and related issues. The
principal act, S.L. 2004-186 (H 1354), spans several
areas of law, incorporating recommendations made by
the House Select Committee on Domestic Violence,
created by the General Assembly in 2003. That act is
referred to here as the DV Act. Unless otherwise noted,
all changes are contained in that act.
Criminal Offenses and Sentencing
New Strangulation Offense. The DV Act creates a
new felony offense of strangulation. Effective for
offenses committed on or after December 1, 2004, new
G.S. 14-32.4(b) makes it a Class H felony to:

x assault another person and
x inflict physical injury by
x strangulation.

The new subsection does not contain a definition
of strangulation or physical injury. (The revised
habitual misdemeanor assault offense, discussed
below, also makes physical injury an element of the
offense, but it does not define the term either.)
Courts from other states, interpreting the term
strangulation primarily in murder cases in which
strangulation was an element of the offense, have
looked to dictionaries for guidance. Although the term
strangulation (or strangle) often is used to refer to
acts that result in death, it does not always refer to
lethal acts, and the General Assembly certainly could
not have intended in an assault statute to refer only to
actions resulting in death. Websters Third New
International Dictionary (3d ed. 1966) gives as one
definition inordinate compression or constriction of a
tube or part (as the throat . . .) esp. to a degree that
causes a suspension of breathing, circulation, or
passage of contents.
If this or a comparable definition of strangulation
is used, the act of strangulation alone could be
sufficient to satisfy the element of physical injury.
Because the statute requires both strangulation and
physical injury, however, additional evidence of injury
may be required to prove the offense. See generally
State v. Kelly, 580 A.2d 520 (Conn. App. 1990)
(offense of assault on peace officer under Connecticut
statute required proof of physical injury; defined as
impairment of physical condition or pain; court finds
that judo stranglehold that made officer grow faint to
the verge of unconsciousness qualified as impairment
of physical condition). In comparison to existing
assault offenses in North Carolina, the injuries required
to show physical injury would certainly not need to
be as great as for the Class F felony of assault
inflicting serious bodily injury under G.S. 14-
32.4(a). Injuries inflicted by strangulation may not
need to be as great as for the misdemeanor offense of
assault inflicting serious injury under G.S. 14-33(c).
More would appear to be required, however, than is
required for the offense of battery under G.S. 14-33(a),
which may be proven by mere physical contact. See
State v. West, 146 N.C. App. 741 (2001) (defining
battery as unlawful application of force, however
slight). The new strangulation offense could not be
established by the threat of physical injury without
physical contact, which can be sufficient for assault
ADMI NI STRATI ON OF JUSTI CE BULLETI N NUMBER 2008/ 01 | JANUARY 2008
2007 Legislation Affecting
Criminal Law and Procedure
by John Rubin*
!nnoccncc !nitiativcs 2
Lincups 2
!ntcrrogations 5
NA Tcsting 6
Scx cndcr Rcgistration and Satcllitc Monitoring 8
Satcllitc Monitoring 8
thcr Scx cndcr Changcs 14
Criminal iscovcry and Rclatcd Proccdurcs 14
pcnFilc iscovcry Changcs 15
thcr iscovcry Mcchanisms 17
Criminal cnscs and Rclatcd Mattcrs 19
omcstic \iolcncc 19
Vcapons 20
rug and Alcohol cnscs 21
cnscs ol a Scxual Naturc 22
Tclt cnscs 23
cnscs Rclatcd to Animals 25
Rcgulatory cnscs 26
Motor \chiclcs 27
thcr Criminal cnscs 28
Law nlorccmcnt 30
8ail 8onds 31
Scntcncing and thcr Conscqucnccs 32
!mmigration and Rclatcd !ssucs 33
Juvcnilc clinqucncy Procccdings 35
Court Administration 35
John Rubin is a School ol Govcrnmcnt laculty mcmbcr spccializing in criminal law and proccdurc.
14 UNC School ol Govcrnmcnt Administration ol Justicc 8ullctin
Other Sex Offender Changes
Warrantless searches and other conditions. cctivc lor pcrsons placcd on probation on or altcr
cccmbcr 1, 2007, thc 2007 Scx cndcr Act (S.L. 2007213) rcviscs G.S. 15A1343(b2) to providc
that a pcrson convictcd ol a rcportablc ocnsc or ol an ocnsc involving physical, mcntal, or scxual
abusc ol a minor must submit at rcasonablc timcs to warrantlcss scarchcs by a probation occr ol thc
probationcrs pcrson and ol thc probationcrs vchiclc and prcmiscs whilc thc probationcr is prcscnt.
Tc scarchcs must bc lor purposcs spccicd by thc court and rcasonably rclatcd to thc probation
supcrvision, and thc probationcr may not bc rcquircd to submit to a scarch that is othcrwisc
unlawlul. Tc rcviscd provision also statcs that warrantlcss scarchcs ol thc probationcrs computcr
or othcr clcctronic mcchanisms that may contain clcctronic data arc considcrcd rcasonably rclatcd to
thc probation supcrvision. Amcndmcnts to G.S. 15A1374(b)(11) and 15A1368.4(b1) makc similar
changcs lor parolccs and pcoplc on postrclcasc supcrvision.
Other consequences. Tc 2007 Scx cndcr Act rcviscs G.S. 14208.9(a) to rcquirc ocndcrs
who arc rcquircd to rcgistcr and who movc lrom onc county to anothcr to rcport in pcrson to thc
shcri ol thc ncw county (as wcll as to thc shcri ol thc prcvious county) and to providc writtcn
noticc to cach shcri ol thc ncw addrcss within tcn days ol thc changc ol addrcss. Tis provision was
initially sct to takc ccct on cccmbcr 1, 2007 (see Scction 15 ol S.L. 2007213), but a tcchnical
corrcctions bill changcd thc ccctivc datc to July 11, 2007. See Scction 42(b) ol S.L. 2007484
(S 613). Sincc thc tcchnical corrcctions bill did not takc ccct until August 30, 2007, thc abovc
rcquircmcnt likcly applics bcginning on that datc.
G.S. 14208.16 prohibits a pcrson who is rcquircd to rcgistcr lrom rcsiding within 1,000 lcct
ol a school as dcncd in that scction. Subscction (d) providcs that thc rcstriction docs not apply il
thc rcsidcncc was cstablishcd bclorc thc ncarby propcrty was turncd into a school. Tis cxccption
includcs situations in which thc ocndcr rcsidcs with an immcdiatc lamily mcmbcr who cstablishcd
rcsidcncc bclorc a changc in thc owncrship or usc ol thc ncarby propcrty. cctivc July 11, 2007, thc
act rcviscs thc cxccption to dcnc immediate family member as a child or sibling who is cightccn ycars
ol agc or oldcr, or a parcnt, grandparcnt, lcgal guardian, or spousc ol thc ocndcr.
Disclosure of certain reportable convictions in child custody proceedings. cctivc lor actions
or procccdings lcd on or altcr ctobcr 1, 2007, S.L. 2007462 (H 1328) adds G.S. 5013.1(a1) to
rcquirc any pcrson instituting an action or procccding lor custody cx partc who has bccn convictcd ol
a scxually violcnt ocnsc, as dcncd in G.S. 14208.6(5), to disclosc thc conviction in thc plcadings.
A sexually violent oense is thc principal typc ol conviction that rcquircs a pcrson to rcgistcr as a scx
ocndcr undcr North Carolinas scx ocndcr rcgistration law.
Funds. Tc 2007 appropriations act appropriatcs approximatcly 8210,000 in rccurring lunds lor
cach ycar ol thc 200709 scal bicnnium lor a sta position and opcrating lunds lor thc scx ocndcr
rcgistry. See Joint Conlcrcncc Committcc Rcport on thc Continuation, xpansion and Capital
8udgcts, Scction !, Justicc.
Criminal Discovery and Related Procedures
!n 2004, thc Gcncral Asscmbly rcwrotc thc criminal discovcry provisions and signicantly cxpandcd
thc statutory rights ol criminal dclcndants to obtain inlormation lrom thc statc about thc prosccution
against thcm. Tc collcction ol rcviscd statutcs is commonly known as thc opcnlc discovcry
law. See S.L. 2004154 (S 52), John Rubin, 2004 Legislation Aecting Criminal Law and Procedure,
2007 Lcgislation Accting Criminal Law and Proccdurc 15
Au:ixis:v~:iox ov Jus:icv 8uiiv:ix No. 2004/06 (ct. 2004), at www.sog.unc.cdu/programs/
crimlaw/aoj200406.pdl. !n thc 2007 scssion, thc Gcncral Asscmbly passcd thrcc acts making minor
modications to thosc provisions as wcll as othcr acts giving thc partics in criminal cascs acccss to
inlormation.
Open-File Discovery Changes
Law enforcements obligation to provide evidence to prosecuting attorney. As part ol thc 2004
rcvisions to thc criminal discovcry laws, thc Gcncral Asscmbly rcquircd law cnlorccmcnt occrs
to makc availablc to thc statc (that is, thc prosccutor) on a timcly and continuing basis all matcrials
and inlormation acquircd in thc coursc ol thc invcstigation ol a lclony. Tis provision was addcd to
cnablc thc statc to comply with its obligation undcr rcviscd G.S. 15A903(a) to makc availablc to thc
dclcndant thc complctc lcs ol all law cnlorccmcnt agcncics involvcd in thc invcstigation. Tc problcm
with thc provision was that it was addcd to a statutc that was casily ovcrlookcdG.S. 15A501(6), in
Articlc 23 ol G.S. Chaptcr 15A, Policc Proccssing and utics Upon Arrcst. S.L. 2007183 (H 786)
rcinlorccs law cnlorccmcnt agcncics obligations by placing a similar provision in ncw G.S. 15A903(c),
a part ol thc criminal discovcry statutcs. Tc ncw subscction providcs that on thc statcs rcqucst, law
cnlorccmcnt agcncics (and prosccutorial agcncics) must makc availablc to thc statc a complctc copy
ol thc complctc lcs rclatcd to thc invcstigation ol thc crimcs committcd or thc prosccution ol thc
dclcndant. Tc act applics to cascs whcrc thc trial datc sct pursuant to G.S. 7A49.4 is on or altcr
cccmbcr 1, 2007. For cascs bclorc that datc, law cnlorccmcnt still has an obligation to providc its
invcstigativc lcs to thc statc undcr G.S. 15A501(6).
Oral statements by witnesses. !n 2004, thc Gcncral Asscmbly signicantly cxpandcd thc statcs
obligation to providc statcmcnts ol witncsscs to thc dclcndant. 8clorc that changc, thc statc was
rcquircd to providc witncss statcmcnts to thc dclcndant only il thc statcmcnts mct ccrtain critcria (lor
cxamplc, thcy wcrc signcd or othcrwisc lormally adoptcd by thc witncss) and only altcr thc witncss
had tcsticd. Tc statc also was rcquircd to rcducc to writtcn or rccordcd lorm oral statcmcnts by thc
dclcndant and any codclcndant bcing tricd jointly with thc dclcndant. Tc Gcncral Asscmbly dclctcd
thosc provisions in 2004 and rcquircd in rcviscd G.S. 15A903(a)(1) that thc statc providc to thc
dclcndant all witncss statcmcnts and rcducc to writtcn or rccordcd lorm and providc to thc dclcndant
all oral statcmcnts. !n State v. Shannon, thc Court ol Appcals rccognizcd that thcsc provisions
rcquirc prosccuting attorncys and thcir lcgal sta, as wcll as law cnlorccmcnt occrs, to mcmorializc
oral statcmcnts madc to thcm by witncsscs and providc thcm to thc dclcndant in discovcry. Tc
court rcjcctcd thc statcs argumcnt that prosccuting attorncys arc cxcmpt lrom thc rcquircmcnt ol
mcmorializing oral statcmcnts by witncsscs. See State v. Shannon, ___ N.C. App. ___, 642 S..2d 516
(2007) (statc pctitioncd North Carolina Suprcmc Court to rcvicw Court ol Appcals dccision but, in
light ol lcgislation bclow, statc withdrcw its pctition).
!n S.L. 2007377 (S 1009), thc Gcncral Asscmbly rcarmcd its approach to oral witncss
statcmcnts, with minor modications, ccctivc lor cascs pcnding on or altcr August 19, 2007. Rcviscd
G.S. 15A903(a)(1) continucs to rcquirc thc statc to rcducc all oral statcmcnts to writtcn or rccordcd
lorm and providc thcm to thc dclcndant cxccpt in thc lollowing circumstanccs: (1) thc oral statcmcnt
was madc to a prosccuting attorncy outsidc thc prcscncc ol a law cnlorccmcnt occr or invcstigatorial
assistant and (2) thc oral statcmcnt docs not contain signicantly ncw or dicrcnt inlormation lrom
a prior statcmcnt madc by thc witncss. (Tc classication ol invcstigatorial assistant is dcscribcd in
G.S. 7A69.) Tus il thc spccicd pcrsonncl arc prcscnt whcn a witncss spcaks to a prosccutor, any
statcmcnts by thc witncss must bc rcduccd to writing, il thc prosccutor is alonc or with somconc
othcr than thc spccicd pcrsonncl, any statcmcnts also must bc rcduccd to writing unlcss thc
statcmcnts contain no signicantly ncw or dicrcnt inlormation.
Certain information not subject to disclosure. 8clorc thc 2004 rcvisions to thc discovcry law,
thc statc had thc right to withhold a broad rangc ol inlormation lrom discovcry. Tc thcncxisting
work product provision, in G.S. 15A904(a), providcd that unlcss disclosurc was othcrwisc rcquircd
by thc discovcry statutc or constitutional principlcs, thc statc could withhold rcports, mcmoranda,
and othcr documcnts madc by thc statc in thc invcstigation and prosccution ol thc casc as wcll as
statcmcnts madc by witncsscs and prospcctivc witncsscs. Tc 2004 opcnlc discovcry lcgislation
rcwrotc thc work product provision in G.S. 15A904(a) to locus on protccting prosccuting attorncys
mcntal imprcssions and conclusions about thc casc whilc cnsuring that thc dclcndant had acccss to
lactual inlormation, whcthcr obtaincd by a prosccuting attorncy or law cnlorccmcnt occr. Tus
rcviscd G.S. 15A904(a) allowcd thc statc to withhold writtcn matcrials draltcd by thc prosccuting
attorncy or thc prosccuting attorncys lcgal sta lor thcir own usc at trial (such as voir dirc qucstions
or closing argumcnts) and othcr matcrials that thcy draltcd to thc cxtcnt thc matcrials containcd
thcir opinions, thcorics, stratcgics, or conclusions. Undcr G.S. 15A908, prosccutors (as wcll as
dclcndants) could apply to thc court lor a protcctivc ordcr il thcy wantcd to withhold inlormation
that othcrwisc would havc to bc discloscd.
S.L. 2007377 lcavcs thcsc provisions in placc but rcviscs G.S. 15A904, ccctivc lor cascs
pcnding on or altcr August 19, 2007, to allow thc statc to withhold two additional typcs ol
inlormation without sccking a protcctivc ordcr. First, undcr ncw G.S. 15A904(a1), thc statc is
not rcquircd to disclosc thc idcntity ol a condcntial inlormant unlcss thc disclosurc is othcrwisc
rcquircd by law. Tus to obtain thc idcntity ol a condcntial inlormant, a dclcndant would havc
to makc a motion to thc court lor disclosurc bascd on constitutional or statutory grounds. See, e.g.,
Roviaro v. United States, 353 U.S. 53 (1957), G.S. 15A978. Sccond, undcr ncw G.S. 15A904(a2),
thc statc is not rcquircd to providc any pcrsonal idcntilying inlormation ol a witncss (such as a
social sccurity numbcr) bcyond thc witncsss namc, addrcss, datc ol birth, and publishcd phonc
numbcr unlcss on thc dclcndants motion thc court dctcrmincs that thc dclcndant nccds additional
inlormation to accuratcly idcntily and locatc thc witncss.
Meaning of prosecutorial agency. As rcviscd in 2004, G.S. 15A903(a)(1) rcquircs thc statc to
makc availablc to thc dclcndant thc lcs ol all law cnlorccmcnt and prosccutorial agcncics involvcd
in thc invcstigation ol thc crimcs committcd or thc prosccution ol thc dclcndant. !n ccct, this
provision rcquircs thc prosccuting attorncy to obtain thc lcs ol thcsc agcncics and providc thcm
to thc dclcndant. A lingcring qucstion has conccrncd which agcncics lcs thc prosccuting attorncy
must obtain and providc to thc dclcndant. Ccrtainly, thc district attorncys occ that is prosccuting
thc casc would bc a covcrcd agcncy, and thc prosccuting attorncy would havc to disclosc inlormation
in that occs posscssion. Likcwisc, thc lcs ol invcstigating law cnlorccmcnt agcncics must bc
discloscd. (To assist prosccutors in complying with that obligation, anothcr act lrom thc 2007
lcgislativc scssion rcquircs law cnlorccmcnt agcncics to providc thcir lcs to thc prosccuting attorncy
on rcqucst. See S.L. 2007183, discusscd abovc.)
Vhat il an cntity is not a law cnlorccmcnt or prosccutorial agcncy itscll but obtains inlormation
on bchall ol a law cnlorccmcnt or prosccutorial agcncy: For cxamplc, supposc thc prosccuting
attorncy uscs a privatc lab lor NA tcsting in a criminal casc. Fcw would disputc that thc prosccuting
attorncy would havc to disclosc that inlormation. !l thc prosccuting attorncy obtaincd thc lab rcport,
it would bc considcrcd part ol thc prosccutors lc and thcrclorc would bc subjcct to statutory
discovcry rcquircmcnts. vcn il thc prosccutor did not actually takc posscssion ol thc rcport, hc or shc
would havc thc right to obtain it and would bc obligatcd to disclosc it to thc dclcndant. See State v.
Pigott, 320 N.C. 96, 102 (1987) (court holds undcr prior discovcry statutc that a prosccutor is obligatcd
to turn ovcr discovcrablc inlormation in posscssion ol thosc working in conjunction with him and his
occ), see also Martinez v. Wainwright, 621 F.2d 184, 188 (5th Cir. 1980) (in casc applying Brady v.
Maryland, which dcals with prosccutors constitutional obligation to disclosc cvidcncc, court hcld that a
prosccutor could not avoid disclosing cvidcncc by thc simplc cxpcdicnt ol lcaving rclcvant cvidcncc to
rcposc in thc hands ol anothcr agcncy whilc utilizing his acccss to it in prcparing his casc lor trial).
S.L. 2007393 (S 1130) makcs thc prosccutors obligations cxplicit with rcspcct to outsidc
agcncics. cctivc ctobcr 1, 2007, G.S. 15A903(a)(1) providcs that thc tcrm prosccutorial agcncy
includcs any public or privatc cntity that obtains inlormation on bchall ol a law cnlorccmcnt agcncy
or prosccutor in conncction with thc invcstigation ol thc crimcs committcd or thc prosccution ol thc
dclcndant. Tis languagc clcarly would covcr inlormation dcvclopcd by thc privatc lab in thc abovc
cxamplc. Tcrc still may bc somc gray arcas, howcvcr. For cxamplc, in conncction with allcgations ol
abusc and ncglcct, a county cpartmcnt ol Social Scrviccs (SS) may invcstigatc thc samc conduct as
chargcd in a criminal casc. Undcr thc ncw languagc in G.S. 15A903(a)(1), it sccms unlikcly that SS
would bc considcrcd a prosccutorial agcncy just bccausc it had invcstigatcd thc samc conduct and,
thcrclorc, unlikcly that its lcs would automatically bc subjcct to thc statutory discovcry provisions. See
State v. Pendleton, 175 N.C. App. 230 (2005) (intcrprcting 2004 vcrsion ol G.S. 15A903(a)(1), court
nds that SS did not act in thc capacity ol a prosccutorial agcncy whcrc SS rclcrrcd mattcr to policc
lor invcstigation, thc policc gathcrcd thcir own cvidcncc, and a SS cmploycc sat in on an intcrvicw
by policc ol a child victim). !n somc instanccs, howcvcr, SS or othcr outsidc agcncics could bccomc
so involvcd in a criminal invcstigation that thcy could bc considcrcd to bc acting in a law cnlorccmcnt
or prosccutorial capacity, and thc portion ol thcir lcs pcrtaining to thc casc could bc subjcct to thc
statutory disclosurc rcquircmcnts. See generally State v. Morrell, 108 N.C. App. 465 (1993) (social
workcr assigncd to casc ol allcgcdly abuscd child actcd as a law cnlorccmcnt agcnt in intcrvicwing
thc dclcndant, rcndcring inadmissiblc custodial statcmcnts madc to social workcr without Miranda
warnings). Rcgardlcss ol whcthcr an outsidc agcncy would bc considcrcd a prosccutorial agcncy undcr
thc ncw languagc, thc statc would still havc to disclosc inlormation it obtains lrom an outsidc agcncy,
just as it would havc to turn ovcr inlormation obtaincd lrom any othcr sourcc. Tc dclcndant also
would havc thc right in somc circumstanccs to obtain thc inlormation dircctly lrom thc outsidc agcncy
by motion to thc court or subpocna. See generally Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (dcscribing
dclcndants right to obtain rccords in posscssion ol third partics).
Other Discovery Mechanisms
Subpoenas for documents. Rulc 45 ol thc North Carolina Rulcs ol Civil Proccdurc govcrns thc usc ol
subpocnas in civil cascs and, lor thc most part, in criminal cascs as wcll. G.S. 15A801 and 15A802 statc
that Rulc 45 applics to criminal cascs cxccpt lor onc subscction ol thc rulcthc provision that rcquircs
thc subpocnaing party to scrvc a copy ol thc subpocna on thc othcr partics to thc casc and not just on thc
pcrson or cntity bcing subpocnacd. !n 2003 thc Gcncral Asscmbly madc numcrous rcvisions to Rulc 45,
promptcd primarily by conccrns lrom civil practitioncrs. 8ccausc ol thc languagc ol G.S. 15A801 and
15A802, thosc changcs appcarcd to apply to criminal cascs as wcll.
9
9. For a discussion ol thc changcs to Rulc 45 and subpocna practicc in gcncral, see John Rubin and Aimcc Vall,
Responding to Subpoenas for Health Department Records, Hv~i:n L~w 8uiiv:ix No. 82 (Scpt. 2005), postcd at
!n thc 2007 lcgislativc scssion, Rulc 45 was rcviscd in a morc limitcd lashion but again apparcntly
in rcsponsc to conccrns in civil cascs. cctivc lor actions lcd on or altcr ctobcr 1, 2007, S.L. 2007
514 (H 316) adds ncw subscction (d1) to Rulc 45 to rcquirc a party who has obtaincd matcrial in
rcsponsc to a subpocna to scrvc on all othcr partics a noticc ol rcccipt ol thc matcrial. Tc party must
scrvc thc noticc ol rcccipt within vc busincss days altcr rcccipt and il rcqucstcd must providc othcr
partics an opportunity to inspcct and copy thc matcrials at thc inspccting partys cxpcnsc.
Tc act docs not spccically cxcmpt criminal cascs lrom this rcquircmcnt, although somcwhat
paradoxically thc subpocnaing party in a criminal casc nccd not givc noticc ol thc scrvicc ol a
subpocna in light ol thc abovc provisions ol G.S. Chaptcr 15A. Tc ncw subpocna provisions arc also
in tcnsion with G.S. 15A905 and 15A906, which csscntially providc that a criminal dclcndant is
only obligatcd to disclosc to thc statc cvidcncc that hc or shc intcnds to usc at trial. !l thc ncw noticc
and inspcction rcquircmcnts do apply to criminal cascs, a party may havc grounds to scck a protcctivc
ordcr undcr G.S. 15A908 to withhold thc rccords lrom disclosurc. Altcrnativcly, instcad ol using
a subpocna, a party may movc lor a court ordcr lor production ol rccords, which is not govcrncd by
Rulc 45.
10
Access to condential school personnel les by state. cctivc July 8, 2007, S.L. 2007192
(H 550) rcviscs G.S. 115C321 to crcatc an cxccption to school cmployccs right to condcntiality in
thcir pcrsonncl lcs. Ncw G.S. 115C321(a1) providcs that inlormation in an cmployccs pcrsonncl
lc that is rclcvant to ccrtain crimcs may bc madc availablc to law cnlorccmcnt and thc district
attorncy. Ncw G.S. 115C321(a2) providcs that thc cmploycc must bc givcn vc working days
writtcn noticc ol any disclosurc so that thc cmploycc may apply to thc district court to dctcrminc
whcthcr thc inlormation is rclcvant to any criminal misconduct. Failurc ol thc cmploycc to apply lor
rcvicw waivcs any right to rclicl. Tc statutc docs not spccily who must givc thc cmploycc noticc.
Ncw G.S. 115C321(a3) providcs that statcmcnts or admissions madc by thc cmploycc and produccd
undcr subscction (a1) arc not admissiblc in any subscqucnt criminal procccding against thc cmploycc.
Disclosures of health information to law enforcement. cctivc Junc 27, 2007, S.L. 2007115
(H 353) amcnds G.S. 9021.208 in an attcmpt to harmonizc statc and lcdcral condcntiality law by
allowing hcalth carc providcrs to disclosc hcalth inlormation in ccrtain situations pcrmittcd undcr
lcdcral law. Undcr thc lcdcral privacy rcgulation promulgatcd pursuant to thc Hcalth !nsurancc
Portability and Accountability Act ol 1996 (H!PAA Privacy Rulc, 45 C.F.R. Parts 160 and 164),
rcgulatcd hcalth carc providcrs arc allowcd to disclosc protcctcd hcalth inlormation without paticnt
pcrmission in a varicty ol circumstanccs. Statcs arc allowcd, howcvcr, to havc morc protcctivc statc
laws in placc. !ntcrprctation and implcmcntation ol North Carolinas condcntiality laws has bccn
uncvcn and somcwhat conlusing ovcr thc ycars, primarily bccausc it has not bccn clcar whcthcr thc
statcs physicianpaticnt privilcgc (G.S. 853) was morc protcctivc ol privacy than thc H!PAA Privacy
Rulc. Many hcalth carc providcrs crrcd on thc sidc ol caution by concluding that thc privilcgc was
morc protcctivc. Tcrclorc, many providcrs rcluscd to disclosc protcctcd hcalth inlormation without
paticnt pcrmission or a court ordcr in circumstanccs in which thc H!PAA Privacy Rulc would havc
allowcd disclosurc.
www.sog.unc.cdu/pubs/clcctronicvcrsions/pdls/hlb82.pdl. Although this bullctin was writtcn to assist hcalth dcpartmcnts
in rcsponding to subpocnas, thc inlormation about subpocna rcquircmcnts is gcncrally applicablc to all procccdings.
10. See 1 Nov:n C~voiix~ vvvxuvv M~xu~i 4.7A, at 3538 (May 1998) (discussing grounds and proccdurcs lor
obtaining rccords in posscssion ol third partics), postcd at www.ncids.org.
S.L. 2007115 addrcsscs this ambiguity in part by adding ncw languagc to G.S. 9021.208
authorizing hcalth carc providcrs to ignorc thc privilcgcs and disclosc inlormation lor (1) law
cnlorccmcnt purposcs as pcrmittcd by a spccic scction ol thc H!PAA Privacy Rulc, 45 C.F.R. 164.512(l )
and (2) trcatmcnt, paymcnt, and hcalth carc opcrations purposcs as pcrmittcd by anothcr scction ol
thc lcdcral rulc, 45 C.F.R. 164.506. Hcalth carc providcrs must still comply with any statc law that
spccically prohibits disclosurc ol particular inlormation, such as inlormation idcntilying a pcrson who
has or may havc a rcportablc communicablc discasc, which is protcctcd undcr G.S. 130A143. vcrall,
this changc in thc law is rathcr signicant in that it opcns thc door lor hcalth carc providcrs to sharc
inlormation with cach othcr and with law cnlorccmcnt ocials to thc cxtcnt pcrmittcd by thc H!PAA
Privacy Rulc without conccrn lor potcntial violations ol thc privilcgcs rccognizcd in statc law.
11
Criminal Offenses and Related Matters
Domestic Violence
Felony violation of domestic violence protective order. rdinarily, a violation ol a domcstic violcncc
protcctivc ordcr (\P) is a Class A1 misdcmcanor undcr G.S. 5084.1(a). Tc 2001 Gcncral
Asscmbly rcviscd G.S. 5084.1 to add two lclony ocnscscommitting a lclony knowing that a
\P prohibits that conduct, punishablc as a lclony onc class highcr than thc lclony committcd, and
violating a \P altcr thrcc convictions undcr G.S. Chaptcr 508, a Class H lclony. cctivc lor
ocnscs committcd on or altcr cccmbcr 1, 2007, S.L. 2007190 (H 47) crcatcs a ncw lclony ocnsc.
Undcr ncw G.S. 5084.1(g), a pcrson is guilty ol a Class H lclony il hc or shc
whilc in posscssion ol a dcadly wcapon on or about or within closc proximity ol his or hcr pcrson
knowingly
violatcs a valid \P
by lailing to stay away lrom a placc or pcrson as dircctcd by thc \P.
Pretrial release for domestic violence oenses. G.S. 15A534.1 contains a spccial proccdurc,
known as thc 48hour law, lor dctcrmining prctrial rclcasc conditions lor dclcndants chargcd with
ccrtain domcstic violcncc ocnscs. Undcr that statutc, only a judgc may dctcrminc prctrial rclcasc
conditions during thc rst 48 hours altcr arrcst. cctivc lor ocnscs committcd on or altcr cccmbcr 1,
2007, S.L. 200714 (H 42) rcviscs that statutc to makc thc ocnsc ol stalking subjcct to thc 48hour
law il thc ocnsc is against a spousc or lormcr spousc ol thc dclcndant or against a pcrson with whom
thc dclcndant livcs or has livcd as il marricd.
Separate waiting area for domestic violence victims. cctivc April 12, 2007, S.L. 200715
(H 46) providcs that whcrc practical, thc clcrk ol supcrior court in cach county must work with thc
county shcri to makc availablc to domcstic violcncc victims a sccurc arca, scgrcgatcd lrom thc gcncral
population ol thc courtroom and availablc on thc victims rcqucst, whcrc thcy may await hcaring
ol thcir court casc. Tc Administrativc cc ol thc Courts must rcport to thc Joint Lcgislativc
Committcc on omcstic \iolcncc by May 1, 2008, on thc progrcss ol providing spacc in cach
courthousc.
11. Tc summary ol this bill is drawn lrom Aimcc N. Vall, Health, in Nov:n C~voiix~ Lvcisi~:iox 2007
(lorthcoming), availablc onlinc at www.sog.unc.cdu/pubs/nclcgis/nclcgis2007/1420Hcalth.pdl.
30 Administration of Justice Bulletin
Postconviction Procedures
open-fle discovery in noncapital postconviction cases. G.S. 15A-1415(f) has allowed open-fle dis-
covery in capital postconviction casesthat is, cases in which a person has been convicted of a
capital ofense and sentenced to death. Te statute gives the defendant the right to the complete
fles of all law enforcement and prosecutorial agencies involved in the investigation of the crimes
committed or the prosecution of the defendant. See John Rubin, 1996 Legislation Afecting
Criminal Law and Procedure, Administration of Justice Bulletin No. 96/03 (Aug. 1996).
Efective for motions for appropriate relief made on or after December 1, 2009, S.L. 2009-517
(S 853) extends G.S. 15A-1415(f) to all defendants represented by counsel in postconviction pro-
ceedings in superior court. Te statute continues to apply to capital defendants because capital
postconviction proceedings are always in superior court and rarely would a capital defendant
be without counsel in such proceedings. Te statute also now applies to noncapital postconvic-
tion proceedings in superior court if the defendant is represented by counsel. Tis precondition
is potentially signifcant in noncapital postconviction cases because, at least initially, prisoners
often proceed pro se. Te precondition appears to serve as a proxy for a determination that the
case meets a minimum threshold of merit. Tus, counsel must agree to represent the defen-
dant on a retained basis; Prisoners Legal Services must decide to take the case; or a court must
appoint counsel under G.S. 7A-451(a)(3) and G.S. 15A-1420(b1)(2), which have been interpreted
as requiring appointment of counsel for an indigent defendant when the claim is not frivolous.
Until the defendant satisfes this precondition, the revised statute does not put the state to the
burden of producing its fles. Te revised statute also states that a defendant represented by
counsel in superior court is entitled to the fles of prior trial and appellate counsel; however, an
unrepresented defendant is likely entitled to those fles in any event, as case fles belong to the
client, not the attorney. See 98 Formal Ethics Opinion 9 (July 16, 1998) (lawyer may not withhold
fle to extract payment of legal fees, retrieval costs, or copying costs).
Te act requires postconviction counsel for a defendant to take an additional step before
actually fling a motion for appropriate relief (MAR) in superior court. Under revised G.S. 15A-
1420(a), the attorney must certify in writing that there is a sound legal basis for the motion and
it is being made in good faith, that the attorney has notifed the district attorneys ofce and at-
torney who initially represented the defendant of the motion, and that the attorney has reviewed
the trial transcript or made a good faith determination that the relief sought does not require
that the trial transcript be read in its entirety. An MAR in superior court may not be granted
unless the attorney has complied with these certifcation requirements. Te certifcation re-
quirement does not apply to requests for discovery, however. Once a defendant has counsel in a
postconviction case, the defendant is entitled to discovery as provided in G.S. 15A-1415(f).
Appointment of counsel for capital mArs. See Capital Cases, below.
Preservation of biological evidence after trial. See Innocence Initiatives, below.
Excerpt from 2009 Legislation Affecting Criminal Law and Procedure:
Summarizes limited changes to discovery laws enacted by the 2009 NC General Assembly
2009 Legislation Afecting Criminal Law and Procedure 43
Juveniles
Te General Assembly passed several acts relating to juveniles. Provisions that may have an
impact in criminal proceedings are discussed below. For a full discussion of legislation relat-
ing to juveniles, see Janet Mason, 2009 North Carolina Legislation: Juvenile Law, Juvenile Law
Bulletin No. 1 (Sept. 2009), www.sog.unc.edu/pubs/electronicversions/pdfs/jvlb0901.pdf.
Access to confdential information held by social services departments. G.S. 7B-302 has provided
that social services departments must maintain the confdentiality of information they receive
in connection with the receipt and assessment of reports of child abuse, neglect, or dependency.
Efective October 1, 2009, S.L. 2009-311 (H 1449) adds subsection (a1) to detail the exceptions
to confdentiality. Among other things, it provides that a juveniles guardian ad litem or juve-
nile, including a juvenile who has reached age 18 or been emancipated, has the right to examine
the information on request. See G.S. 7B-302(a1)(2). It also provides that a district or superior
court judge presiding over a criminal or delinquency case must conduct an in camera review
before releasing to the defendant or juvenile in that case any confdential records maintained
by the department of social services. See G.S. 7B-302(a1)(4). Tis requirement does not apply to
records the defendant or juvenile is otherwise entitled to under G.S. 7B-302(a1)(2). Te review
provisions implicitly confrm that when a criminal or juvenile delinquency case is pending, the
criminal defendant or respondent juvenile has the right to request a judge presiding in that case
to order release of information; the criminal defendant or respondent juvenile need not obtain
an order of the district court in which the particular child abuse, neglect, or dependency matter
is or was heard.
Access to juvenile court records. Efective December 1, 2009, as described in the act, S.L. 2009-
545 (S 984) revises G.S. 7B-3000 to broaden access to court records of juvenile delinquency pro-
ceedings, providing greater access by law enforcement, prosecutors, magistrates, and the courts
in specifed circumstances. Te revised statute and revised G.S. 7B-3001 also clarify that the
juveniles attorney as well as the juvenile have a right to examine and obtain, without a court or-
der, copies of court records and law enforcement records and fles concerning the juvenile. S.L.
2009-372 (S 920), efective December 1, 2009, as described in the act, further rewrites G.S. 7B-
3000(b) to allow probation ofcers in the Division of Community Corrections of the Depart-
ment of Correction to examine and obtain copies of the written parts of a juveniles record in
specifed circumstances. Tese changes are discussed further in the legislative summary by
Janet Mason, cited above.
Duty to report abuse, neglect, and dependency. Efective October 1, 2009, S.L. 2009-311 (H 1449)
adds G.S. 7B-1700.1 to a part of the Juvenile Code relating to juvenile delinquency proceedings
(Article 17, Screening of Delinquency and Undisciplined Complaints). Te new statute provides
that if a juvenile court counselor has cause to suspect that a juvenile is abused, neglected, or
dependent or has died as the result of maltreatment, the juvenile court counselor must make a
report to the county department of social services as required by G.S. 7B-301. Although insert-
ed among the statutes on juvenile court counselors responsibilities, the new statute also states
that it applies to any person. Tis provision is potentially problematic if construed as applying
to an attorney representing a juvenile in a delinquency proceeding, as information gained in the
course of representation is ordinarily confdential. By referring to G.S. 7B-301, the general duty-
to-report statute, the new statute may incorporate the statutory exception in G.S. 7B-310 for
information gained in the course of the attorney-client privilege, although the literal language of
that statute applies to information gained in the course of an abuse, neglect, or dependency case.
An attorneys ability to divulge confdential information obtained in the course of representing a
1
EXCERPT FROM
2011 Legislation Affecting Criminal Law and Procedure (Dec. 12, 2011)
John Rubin, UNC School of Government
available at http://dailybulletin.unc.edu/summaries11/category05.html

S.L. 2011-19 (H 27), as amended by S.L. 2011-307 (S 684): SBI crime lab and related changes. Effective
March 31, 2011 except as noted below, the act adds and modifies several statutes regarding the State
Bureau of Investigation (SBI) Laboratory and forensic testing. The laboratory remains a part of the SBI,
but it is renamed the State Crime Laboratory (State Crime Lab) and G.S. 114-16 is revised to direct the
SBI to employ a sufficient number of skilled people to render a reasonable service to the public and
criminal justice system (was, prosecuting officers of the State).
. . . .
Discovery. Amended G.S. 15A-903(a)(1), which requires the State to make available to the defendant
its complete files as defined in the statute, states that [w]hen any matter or evidence is submitted for
testing or examination, in addition to any test or examination results, all other data, calculations, or
writings of any kind shall be made available to the defendant, including, but not limited to, preliminary
test or screening results and bench notes. Amended G.S. 15A-903(c) requires all public and private
entities that obtain information related to the investigation of the crimes committed or the prosecution
of the defendant to disclose such information to the referring prosecutorial agency for disclosure to the
defendant. New G.S. 15A-903(d) makes it a Class H felony for a person to willfully omit or misrepresent
evidence or information required to be disclosed under G.S. 15A-903(a)(1) or required to be provided to
the State under G.S. 15A-903(c); and makes it a Class 1 misdemeanor to willfully omit or misrepresent
evidence or information required to be disclosed pursuant to any other provision of this section
(meaning G.S. 15A-903).

S.L. 2011-247 (H 379): Interstate Depositions and Discovery Act and potential applicability to criminal
cases. Effective for cases pending on or after December 1, 2011, the act creates new G.S. Chapter 1F,
the North Carolina Interstate Depositions and Discovery Act. Its principal purpose is to simplify the
procedure for parties in a civil case in one state to take depositions of witnesses in another state. The
act also may affect criminal cases because, in addition to creating new G.S. Chapter 1F, it amends North
Carolina Rule of Civil Procedure 45, which is applicable to criminal cases by virtue of G.S. 15A-801 and
15A-802 except as otherwise specified. New Rule 45(f) sets forth the procedure for obtaining discovery,
including obtaining a deposition, from a person residing in a state or U.S. territory outside North
Carolina. The new provisions do not appear to exclude criminal cases. See also Uniform Interstate
Depositions and Discovery Act (National Conference of Commissioners on Uniform State Laws, 2007). If
the new provisions apply to criminal cases, a party in a North Carolina case would be able to obtain a
deposition or other discovery in another state only if the other state allows such discovery. Thus, if
another state allows depositions in criminal cases, as in Florida, a party in a North Carolina criminal case
2
may be able to use amended Rule 45 to depose a witness residing there; if the other state does not
allow depositions, the amended provisions would not give a party in North Carolina that right. Rule 45(f)
provides that if required by the other states procedures, a party first must obtain a commission (an
order) from a North Carolina court before seeking the discovery in the other state.

S.L. 2011-250 (H 408): Changes to criminal discovery. Effective for cases pending on or after December
1, 2011, the act makes modest changes to North Carolinas criminal discovery laws. These changes are in
addition to those made in S.L. 2011-19, which primarily made changes to the SBI crime lab but also
explicitly required production of lab notes and data and made discovery violations a crime in some
instances. Amended G.S. 15A-903(a)(1) distinguishes between a prosecutors office, defined as the office
of the prosecuting attorney, and an investigatory agency, defined as any public or private entity that
obtains information on behalf of a law enforcement agency or prosecutors office. The change helps
clarify the obligations of the different entitieslaw enforcement agencies, investigatory agencies, and
prosecutors officesthat must provide information for disclosure to the defense. The change does not
alter the obligation of the State as a whole to provide the defense with the complete files of all law
enforcement agencies, investigatory agencies, and prosecutors offices involved in the investigation of
the crimes allegedly committed or the prosecution of the defendant.
Amended G.S. 15A-903(c) provides that law enforcement and investigatory agencies must make the
required files available to the prosecutors office on a timely basis (was, on request by the prosecutor).
New G.S. 15A-904(a3) provides that the State is not required to disclose the identity of any person
who provides information about a crime to a Crime Stoppers organization under assurance of anonymity
unless ordered by the court. The new subsection includes a definition of a Crime Stoppers organization.
New G.S. 15A-904(a4) provides that the State is not required to disclose the Victim Impact
Statement in a casedefined as the document submitted by the victim or family to the State pursuant
to the Victims Rights Amendmentunless otherwise required by law.
New G.S. 15A-910(c) provides that for purposes of determining whether to impose personal
sanctions for untimely disclosure of law enforcement and investigatory agency files, it is presumed that
prosecuting attorneys and their staffs acted in good faith if they made a reasonably diligent inquiry of
those agencies and disclosed the responsive materials. This presumption does not appear to apply to
the untimely disclosure of prosecutor office files. New G.S. 15A-910(d) provides that if the court imposes
any sanction, it must make specific findings justifying the sanction.
Amended G.S. 15A-903(a)(2), which addresses disclosure by the prosecutor of expert witnesses, and
amended G.S. 15A-905(c)(2), which addresses disclosure by the defense of expert witnesses, require the
Administrative Office of the Courts and Office of Indigent Defense Services to develop standard fee
scales for expert witnesses and private investigators paid with state funds.

Excerpts from NC Defender Manual
on
Third-Party Discovery

1. Excerpt from Volume 1, Pretrial, of NC Defender Manual:
Discusses procedures for obtaining records from third parties and rules governing subpoenas
2. Excerpt from 1999 Supplement to NC Defender Manual:
Summarizes cases and materials since issuance of manual
3. Form motions for obtaining records from third parties

The full manual is online at www.ncids.org (under Defender Manual)
Ch. 4: Discovery

NC Defender Manual | May 1998 | Institute of Government 35
H. Defendants Knowledge of Evidence

Agurs held that the prosecution violates its Brady obligations by failing to disclose
favorable, material evidence known to it but unknown to the defense. As a result, the
courts have held that nondisclosure does not violate Brady if the defendant knows of the
evidence and has access to it. See State v. Wise, 326 N.C. 421, 390 S.E.2d 142 (1990)
(defendant knew of examination of rape victim and results and could have subpoenaed
doctor to testify; prosecutions failure to provide report therefore not Brady violation);
see also 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 546-47 (West
Pub. Co., 1984) (defendant must know not only of existence of evidence but also of its
potentially exculpatory value).

I. In Camera Review and Other Remedies

If defense counsel doubts the adequacy of disclosure by the prosecution, counsel may
request that the trial court conduct an in camera review of the evidence in question. See
State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) (stating general right to in camera
review); State v. Kelly, 118 N.C. App. 589, 456 S.E.2d 861 (1995) (new trial for failure of
trial court to conduct in camera review); State v. Jones, 85 N.C. App. 56, 354 S.E.2d 251
(1987) (new trial). To obtain an in camera review, counsel must make some showing that
the evidence may contain favorable, material information. See State v. Soyars, 332 N.C.
47, 418 S.E.2d 480 (1992) (court characterized general request as fishing expedition
and found no error in trial courts denial of in camera review).

If the court refuses to review the documents, or after review refuses to require production
of some or all of the documents, counsel should move to have the documents sealed and
included in the record in the event of appeal. See State v. Hardy, 293 N.C. 105, 235
S.E.2d 828 (1977).

In some instances, counsel may want to subpoena witnesses and documents to the motion
hearing. Examination of witnesses (such as law-enforcement officers) may reveal
discoverable evidence that the state has not yet disclosed. For a discussion of subpoenas,
see infra 4.8, p. 42.

4.7 Other Constitutional Rights

A. Evidence in Possession of Third Parties

This section focuses on records in a third partys possession concerning a victim or
witness. Records concerning the defendant are discussed briefly at the end of this section.
Ch. 4: Discovery

36 NC Defender Manual | May 1998 | Institute of Government
Right to Obtain. Due process gives the defendant the right to obtain from third parties
records containing favorable, material evidence even if the records are confidential under
state or federal law. This right is an offshoot of the right to favorable, material evidence
in the possession of the prosecution. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct.
989, 94 L. Ed. 2d 40 (1987) (records in possession of child protective agency); Love v.
Johnson, 57 F.3d 1305 (4th Cir. 1995) (North Carolina state courts erred in failing to
review records in possession of county medical center, mental health department, and
department of social services); State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988)
(following Ritchie).

Other grounds also may support disclosure of confidential records in the hands of a third
party. See State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979) (recognizing courts
inherent authority to order disclosure); G.S. 8-53 (under this statute, which is
representative of several on privileged communications, court may compel disclosure of
communications between doctor and patient when necessary to proper administration of
justice); In re Martin Marietta Corp., 856 F.2d 619, 621 (4th Cir. 1988) (federal rule
allowing defendant to obtain court order for records in advance of trial implements the
Sixth Amendment guarantee that an accused have compulsory process to secure evidence
in his favor).

Directing Production of Records. In federal court, a judge may issue a subpoena
requiring a witness to produce records in advance of trial or in advance of other
proceedings at which the records are needed. See FED. R. CRIM. P. 17(c). North Carolina
does not have an explicit statute or rule to this effect, but defense counsel should be able
to obtain similar relief here.

Counsel may move for a judge to issue an order or a subpoena requiring the third
party to produce the records in court so the judge may review them and determine
those portions subject to disclosure.
Rather than asking the judge to issue the order or subpoena, counsel may issue a
subpoena directing the third party to produce the records in court for the judge to
review. This procedure has the advantage of requiring only one hearing, but it may
not be feasible in all cases.
In some instances (discussed below), counsel may move for a judge to issue an order
requiring the third party to provide the records directly to counsel.

Sample motions to require third parties to produce records appear at the end of this
chapter. See also infra 4.8D, p. 43 (discussing production of records in response to
subpoena).

Ch. 4: Discovery

In Camera Review and Alternatives. Under Ritchie, a defendant may obtain an in
camera review of confidential records in the hands of a third party and, to the extent the
records contain favorable, material evidence, the judge must order the records disclosed
to the defendant.

The in camera procedure has some disadvantages, however, and is not always required.
Principally, the court may not know the facts of the case well enough to recognize
evidence important to the defense. Some alternatives are as follows:

If the evidence is within the prosecutions possession, custody, or control, defense
counsel may move for disclosure without an in camera review on the ground that the
records come within some discoverable category of information (for example, reports
of examinations). Because it may be unclear whether the prosecution has access to the
records, counsel may need to move for an order requiring the prosecutor to disclose
the records or, in the alternative, requiring the third party to provide the records to the
court for an in camera review.
Some judges may be willing to order disclosure of records in the hands of third parties
without conducting an in camera review. Defense counsel can argue that the interest
in confidentiality warrants neither restricting the defendants access to potentially
helpful information nor imposing the burden on the judge of conducting an in camera
review. See Ritchie, 480 U.S. at 60 (authorizing in camera review if necessary to
avoid compromising interest in confidentiality).
Defense counsel can move to participate in any review of the records under a
protective order. Such an order might provide that counsel may not disclose the
materials unless permitted by the court. See G.S. 15A-908 (authorizing protective
orders); Zaal v. State, 602 A.2d 1247 (Md. 1992) (court may conduct review of
records in presence of counsel or permit review by counsel alone, as officer of court,
subject to restrictions protecting confidentiality); Commonwealth v. Lloyd, 567 A.2d
1357 (Pa. 1989) (requiring trial court to allow defense counsel to participate in in
camera review under appropriate orders assuring confidentiality).

Required Showing. In support of a motion for records from a third party, the defendant
must make some plausible showing that the records may contain favorable, material
evidence. See Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995).

If the court refuses to require the third party to produce the documents, or after reviewing
the documents refuses to require disclosure of some or all of them, counsel should move
to have the documents sealed and included in the record in the event of appeal. See State
v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); see also State v. Burr, 341 N.C. 263, 461
S.E.2d 602 (1995) (court states that it could not review trial courts denial of motion to
require production of witnesss medical records because defendant failed to make
documents part of record on appeal).

Ch. 4: Discovery

Ex Parte Application. In seeking third-party records, counsel should consider making
any application to the court ex parte. Although the North Carolina courts have not
specifically addressed this procedure in the context of third-party records, they have
allowed defendants to apply ex parte for funds for an expert (see infra 5.4, p. 8). Some
of the same reasons for allowing ex parte applications for experts apply to motions for
third-party records (that is, need to protect trial strategy, confidential attorney-client
communications, etc.).

In view of these considerations, some courts have held that a defendant may move ex
parte for an order requiring pretrial production of documents from a third party. See
United States v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997) (court reviews Federal Rule
of Criminal Procedure 17(c), which authorizes court to issue subpoena duces tecum for
pretrial production of documents, and rules that defendant may move ex parte for
issuance of subpoena duces tecum to third party); United States v. Beckford, 964 F. Supp.
1010 (E.D. Va. 1997) (to same effect). See also State v. Gray, 347 N.C. 143, 491 S.E.2d
538 (1997) (court finds that it was permissible for prosecution to obtain ex parte order
requiring North Carolina Department of Revenue to produce defendants tax records in
advance of trial, although court did not address whether defendants interest in
confidentiality of records gave him right to notice of and opportunity to oppose
application for order).

If the prosecution receives notice of a motion or order for production of records from a
third party, it may not have a right to object or to obtain copies of the records. See
Tomison (prosecution lacked standing to move to quash subpoena to third party because
prosecution had no claim of privilege, proprietary right, or other interest in subpoenaed
documents; prosecution also did not have right to receive copies of the documents unless
defendant intended to introduce them at trial); State v. Clark, 128 N.C. App. 87, 493
S.E.2d 770 (1997) (court had discretion to require Department of Correction to provide to
prosecution records that it had provided to defendant). See also infra 4.8E, p. 43
(discussing standing to move to quash subpoena duces tecum).

Records Concerning Defendant. When records in a third partys possession concern
the defendant (for example, the defendants medical records), defense counsel often can
obtain them without court involvement by submitting a release to the custodian of
records. Some agencies may be unwilling to release the records without a court order or
payment of copying costs. In such instances, counsel may be able to apply to the court ex
parte for an order requiring production of the records. A sample motion appears at the
end of this chapter.

B. False Testimony or Evidence

Prosecutors Duty. The prosecution has a constitutional duty under the due process
clause to correct false testimony. This duty is the forerunner of the duty to disclose
favorable, material evidence. A conviction must be set aside if

Ch. 4: Discovery

4.8 Subpoenas

Although not a formal discovery device, subpoenas (particularly subpoenas duces tecum)
may be a useful tool for obtaining information.

A. Right to Subpoena Witnesses and Documents

A subpoena may be used to compel a witness to testify, produce documents and other
tangible things, or do both at any court proceeding. Thus, a subpoena may compel a
witness to appear and produce documents for when the case is calendared for trial. It also
may compel a witness to appear and produce documents at pretrial proceedings, such as a
probable cause hearing, suppression hearing, or hearing on a discovery motion.

A defendants right to subpoena witnesses and documents is based primarily on the Sixth
Amendment right to compulsory process. See Washington v. Texas, 388 U.S. 14, 19, 87
S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (right to compel attendance of witnesses is in
plain terms the right to present a defense); State v. Rankin, 312 N.C. 592, 324 S.E.2d
224 (1985) (recognizing Sixth Amendment basis of subpoena power). See also N.C.
CONST. art. 1, 23 (right to confront accusers and witnesses with other testimony). Other
grounds also may support the use of a subpoena. See supra 4.7A, p. 36 (right to obtain
favorable, material evidence in possession of third party).

B. Permissible Scope of Subpoena

A subpoena may be directed to any person within North Carolina who is capable of being
a witness, including law-enforcement officers, custodians of records of public agencies,
and private businesses and individuals. To obtain witnesses or documents located outside
of North Carolina, defense counsel must use the Uniform Act to Secure Attendance of
Witnesses. See G.S. 15A-811; Jay M. Zitter, Annotation, Availability under Uniform Act
to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of
Subpoena Duces Tecum, 7 A.L.R.4th 836 (1981) (uniform act has been interpreted as
allowing subpoena to out-of-state witness to produce documents).

Documents not subject to discovery may be subpoenaed as long as they are material to the
proceedings. The subpoena must specify with some precision the documents to be
produced. Otherwise, the court may view the subpoena as an effort to circumvent the
discovery statutes and quash it as a fishing expedition.

C. Issuance and Service of Subpoena

Rule 45 of the North Carolina Rules of Civil Procedure governs the issuance and service
of subpoenas. See G.S. 15A-802 (subpoenas in criminal cases governed by Rule 45); G.S.
8-61 (to same effect). The court need not be involved in the issuance of a subpoena to
testify or to produce documents; defense counsel may issue either. See AOC-G-100
(blank subpoena form available from clerk).
Ch. 4: Discovery

The sheriff, or any person over age 18 who is not a party, may serve a subpoena. Service
is best effected by personal delivery to the person named in the subpoena but also may be
by certified mail or, in some instances, by telephone. See N.C. R. CIV. P. 45(e); G.S. 8-59.

The defendant need not tender any witness fee at the time of service. See G.S. 6-51
(witness not entitled to receive fees in advance); G.S. 7A-316 (witness must apply to
clerk of court for fees after appearance). Generally, the court may assess witness fees
against the defendant only on completion of the case. See G.S. 7A-304 (costs may be
assessed against defendant on conviction or entry of plea of guilty or no contest).

D. Time and Method of Production of Records

The person named in a subpoena duces tecum ordinarily must appear in court on the date
designated in the subpoena and must produce the requested documents. If the subpoena is
to a records custodian of a public entity or hospital, and does not direct the custodian to
appear, the custodian may be able to mail the records to the clerk of court in lieu of
appearing. See N.C. R. CIV. P. 45(c).

When the subpoena requires a records custodian to appear and produce documents, he or
she may be willing to provide the documents directly to defense counsel to avoid
appearing in court. If the subpoena seeks confidential records of a victim or witness,
however, the custodian likely will be unwilling to disclose the records in advance of the
proceeding. Defense counsel also may need to be wary of reviewing confidential records
of a victim or witness without the protection of a court order (or release or other
authorization). See generally Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d 838 (1995)
(judge imposed monetary sanctions against attorney who reviewed confidential records
that had been mailed to clerk in response to subpoena but had not yet been ordered to be
disclosed by judge); Susan S. v. Israels, 67 Cal. Rptr. 2d 42 (Cal. Ct. App. 1997) (defense
attorney read and disseminated patients confidential mental health records that treatment
facility mistakenly sent directly to him in response to subpoena; court allows patients
suit against attorney for violation of state constitutional right of privacy); N.C. RULES OF
PROFESSIONAL CONDUCT, Ethics Opinion 236 (1997) (discussing misuse of subpoena).

If defense counsel needs to obtain confidential records concerning a victim or witness,
counsel should consider filing a motion requesting the court to order disclosure of the
records. See supra 4.7A, p. 35 for a discussion of this procedure.

E. Motions to Quash

The person named in the subpoena, or a person who has some right or other protected
interest in the documents sought, may move to quash the subpoena on or before the date
set for appearance. In response, the court may quash the subpoena or modify it to narrow
Ch. 4: Discovery

its scope. See Vaughn v. Barefoot, 267 N.C. 691, 149 S.E.2d 37 (1966) (discussing
subpoenas in general); State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158 (1986)
(quashing subpoena); State v. Little, 67 N.C. App. 128, 312 S.E.2d 695 (1984) (in
opposing motion to quash subpoena duces tecum, defendant need only make threshold
showing of claim or defense); State v. Richardson, 59 N.C. App. 558, 297 S.E.2d 921
(1982) (court may modify subpoena duces tecum rather than quash it), affd in part and
revd in part, 308 N.C. 470, 302 S.E.2d 799 (1983).

In some cases, trial courts have granted motions by the prosecutor to quash a subpoena
duces tecum directed to a third party. See State v. Love, 100 N.C. App. 226, 395 S.E.2d
429 (1990), conviction vacated on habeas, 57 F.3d 1305 (4th Cir. 1995). But those cases
did not explicitly address whether the prosecution had standing to object to a subpoena
for a third partys records. See generally 2 G. GRAY WILSON, NORTH CAROLINA CIVIL
PROCEDURE 102 (Michie Co., 2d ed. 1995) (A party does not have standing to challenge
a subpoena duces tecum issued to a nonparty witness unless he can claim some privilege
in the documents sought); United States v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997)
(prosecution lacked standing to move to quash subpoena to third party because
prosecution had no claim of privilege, proprietary right, or other interest in subpoenaed
documents).

4.9 Prosecutions Discovery Rights

A. Reciprocal Statutory Rights

Statutory Requirements. Defense counsel effectively controls whether the prosecution
has any statutory discovery rights. G.S. 15A-905 allows discovery of certain categories of
evidence in the defendants possession only if the defendant requests discovery of those
categories from the state and the state discloses that category of information, either
voluntarily or pursuant to court order. See G.S. 15A-902(b) (states voluntary compliance
in response to request is deemed to have been made under court order); State v. Clark,
128 N.C. App. 87, 493 S.E.2d 770 (1997) (defendant had no obligation to provide
reciprocal discovery of its experts report because defendant had not requested discovery
of report of states expert).

The state waives its statutory rights if it fails to make a voluntary request for discovery
within ten working days after it discloses information in response to a statutory discovery
request by the defendant. Only after making a timely request for voluntary discovery may
the state file a motion for discovery. See G.S. 15A-902(a), (e); State v. Anderson, 303
N.C. 185, 191, 278 S.E.2d 238, 242 (1981) (Before either the state or defendant is
entitled to an order requiring the other to disclose, it or he must first request in writing
that the other party comply voluntarily with the discovery request.).

If the defendant agrees to provide discovery in response to the states request, or the court
orders the defendant to provide discovery, the prosecution may seek sanctions for a
1999 Supplement

NC Defender Manual | Sept. 1999 | Institute of Government 11
summarizing the interviews, the handwritten notes revealed significant information not
contained in the written report.

4.7 Other Constitutional Rights

(The following supplements Directing Production of Records [in Possession of Third
Parties], Ch. 4, p. 36)

In seeking an order for production of confidential records in the possession of a third
party, counsel may need to apply to the level of court in which the case is then pending.
See State v. Rich, ___ N.C. App. ___, 512 S.E.2d 441 (1999) (court holds that district
court should not have entered order overriding doctor-patient privilege because G.S. 8-53
provides that once case is in superior court, as in this instance, the judge ruling on the
privilege must be a superior court judge), review granted, ___ N.C. ___, ___ S.E.2d ___
(July 22, 1999); see also State v. Jones, ___ N.C. App. ___, 516 S.E.2d 405 (1999) (until
case is transferred to superior court, district court has jurisdiction to rule on preliminary
matters such as production of medical records).

4.8 Subpoenas

(The following is a new section after Motions to Quash, Ch. 4, pp. 4344)

F. Specific Types of Records

For a discussion of subpoenas for mental health records, see John Rubin & Mark Botts,
Responding to Subpoenas: A Guide for Mental Health Professionals, POPULAR
GOVERNMENT, Summer 1999, at 27 <http://ncinfo.iog.unc.edu/pubs/pg/rubin2.htm>.

For a discussion of subpoenas for school records, see John Rubin, Subpoenas and School
Records: A School Employees Guide, SCHOOL LAW BULLETIN, Spring 1999, at 1
<http://ncinfo.iog.unc.edu/pubs/slb/slbrubin.htm>.

4.9 Prosecutions Discovery Rights

(The following supplements Reciprocal Statutory Rights, Ch. 4, pp. 4445)

Statutory discovery by the prosecution is subject to two key limitations. First, a defendant
may avoid discovery of a particular statutory category of evidence, such as the results or
reports of examinations or tests, by not seeking discovery of that category from the
prosecution. G.S. 15A-905 contains this limitation for each category of statutory
discovery by the prosecution. See also Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208,
37 L. Ed. 2d. 82 (1973) (reciprocal discovery required by fundamental fairness).
Foregoing discovery of the prosecutions evidence will often be too high a price to pay
for avoiding discovery by the prosecution, but defense counsel may wish to consider this
option in some circumstances.

1
COUNTY OF WAKE 11 CRS

STATE OF NORTH CAROLINA, )
) MOTION TO OPEN JUVENILE
vs. ) RECORDS & TO ALLOW DEFENSE
) TO USE PRIOR JUVENILE
) RECORD IN
) CROSS EXAMINATION OF
Defendant. ) PROSECUTION WITNESSES
____________________________________________________

NOW COMES the Defendant, by and through his
undersigned counsel, Maitri Mike Klinkosum, Attorney at Law, and Evonne S.
Hopkins, Attorney at Law, and hereby moves this Honorable Court pursuant to the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, Article 1 19 and 23 of the North Carolina Constitution, N.C.G.S. 8C-1,
Rule 609(d) of the North Carolina Rules of Evidence, and the holdings of Davis v.
Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, to issue an Order
commanding the Clerk of Superior Court and the Department of J uvenile J ustice to open
any juvenile files of the following potential prosecution witness:

1. (date of birth ).

The Defendant further requests that the Court allow the defense to use such
juvenile records in the cross-examination of said prosecution witnesses. In support of
this Motion, the Defendant would show unto the Court as follows:

1. The Defendant is charged with one count of Statutory Rape pursuant to
N.C. Gen. Stat. 14-27.7A(a) and one count each of Delivery of a
Controlled Substance to a Person Under Sixteen Years of Age pursuant to
N.C.Gen. Stat. 90-95(e)(5).

2. Upon information and belief, the prosecution will call upon the above-
listed witness in its case-in-chief as said witness is the alleged victim in
these matters.

3. Upon information and belief, said witness may have prior juvenile
adjudications.

4. N.C. Gen. Stat. 8C-1, Rule 609(d) states:

2
J uvenile adjudications.-Evidence of juvenile adjudications is generally not
admissible under this rule. The court may, however, in a criminal case
allow evidence of a juvenile adjudication of a witness other than the
accused if conviction of that offense would be admissible to attack the
credibility of an adult and the court is satisfied that admission in
evidence is necessary for a fair determination of the issue of guilt or
innocence. (Emphases added)

7. Rule 609(d) was placed into effect by the North Carolina General
Assembly in order to comply with the holding in the landmark case of
Davis v. Alaska.
1

8. Davis v. Alaska holds, The States policy interest in protecting the
confidentiality of a juvenile offenders record cannot require yielding of so
vital a constitutional right as the effective cross-examination for bias of an
adverse witness. The State could have protected Green from exposure of
his juvenile adjudication in these circumstances by refraining from using
him to make out its case; the State cannot, consistent with the right of
confrontation, require the petitioner to bear the full burden of vindicating
the States interest in the secrecy of juvenile criminal records.

9. If, as the defense believes, the prosecution witness, has, in fact, been
adjudicated delinquent for criminal offenses, then undoubtedly the
offenses of which she was adjudicated are offenses which would be
admissible to attack the credibility of an adult as that principle is used in
8C-1, Rule 609(d). Admission into evidence of such offenses will
necessary for a fair determination of guilt or innocence.

10. Therefore, the requirements of the confrontation clause and the holding of
Davis v. Alaska would best be served by requiring the Clerk of Superior
Court to open the juvenile file of prosecution witnesses and allow the
court, the prosecutor, and the counsel for the defense to inspect said file
for evidence of adjudications, which the defense, in good faith, believes to
exist and by allowing the defense to use evidence of said adjudications in
its cross-examination of the prosecution witnesses.

WHEREFORE, the Defendant respectfully prays unto this Honorable Court for
the following relief:

1. That the Court order the Clerk of Court of Wake County, or any other
county in North Carolina which may possess juvenile records related to
the aforementioned witness, and the Office of J uvenile J ustice, to open the
juvenile files of the above-listed prosecution witness and provide the
defense with copies of said files;

1
415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
3
2. In the alternative, that the Court order the Clerk of Court of Wake County,
or any other county in North Carolina which may possess juvenile records
related to the aforementioned witness, and the Office of J uvenile J ustice,
to open the juvenile files of the above-listed prosecution witness and
provide the Court with copies of said files for the Court to conduct an in
camera inspection of said files pursuant to Pennsylvania v. Ritchie,
2

480
U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), State v. Bailey, 89
N.C.App. 212, 365 S.E.2d 651 (1988), and State v. Hardy, 293 N.C. 105,
235 S.E.2d 828 (1977), and disclose to the defense any favorable and
material evidence;
3. That the Court allow the defense to use evidence of juvenile
adjudication(s) contained in the file in the defenses cross-examination of
said witnesses; and

4. For such other and further relief to which the Defendant may be entitled
and which the court may deem just and proper.

This the 9
th
day of October 2009.

By:_________________________________
Maitri Mike Klinkosum
Assistant Public Defender
Attorney for the Defendant
227 Fayetteville St., Suite 500
Raleigh, NC 27601
Telephone: (919) 715-1514
Facsimile: (919) 715-1510
Email: [email protected]

2

4
Certificate of Service

This shall certify that a copy of the foregoing Motion to Open Juvenile Records
& to Allow Defense to Use Prior Juvenile Record in Cross-Examination of Prosecution
Witnesses was this day served upon the District Attorney by the following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or official
depository under the exclusive care, custody, and control of the United
States Postal Service, properly addressed to Office of the District
Attorney;

__X__ by personally serving the Office of the District Attorney via hand delivery
(Assistant District Attorney );

_____ by transmitting a copy via facsimile transmittal to the Office of the District
Attorney; and/or

_____ by depositing a copy in the box for the Office of the District Attorney
maintained by the Clerk of Superior Court.

This the 9
th
day of October 2009.

By:___________________________
Assistant Public Defender
Raleigh, NC 27601
Telephone: (919) 715-1514
Facsimile: (919) 715-1510

- 1 -

)
VS. ) REQUEST FOR
) VOLUNTARY DISCOVERY
) (ALTERNATIVE MOTION FOR
, ) DISCOVERY)
)
Defendant. )
______________________________________________________________________________

NOW COMES the Defendant, , by and through the undersigned
counsel, Maitri Mike Klinkosum, Attorney at Law, and hereby requests voluntary discovery
from the prosecution in this case, pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, Article I, 19 and 23 of the North Carolina
Constitution, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its
progeny, and Article 48 of the North Carolina General Statutes.

1. Pursuant to N.C. Gen. Stat. 15A-903(a)(1), the Defendant requests the complete
files of all law enforcement agencies, investigatory agencies, and prosecutor
offices involved in the investigation of the crimes committed or the prosecution of
the defendant.

2. Pursuant to N.C.Gen. Stat. 15A-903(a)(1)(a), the Defendant requests the
following:

(a) The defendants statements;

(b) The co-defendants statements;

(c) Witness statements;

(d) Investigating officers notes;

(e) Results of tests and examinations; and

(f) Any other matter or evidence obtained during the
investigation of the offenses alleged to have been
committed by the defendant.

- 2 -
3. Pursuant to N.C. Gen. Stat. 15A-903(a)(1)(a), if any matter or evidence
has been submitted for testing or examination, the Defendant requests the
following:

(a) Any and all test and/or examination results;

(b) Any and all testing/examination data;

(c) Any and all calculations, or writings of any kind, generated
in connection with said testing and/or examination results;

(d) Any and all preliminary test and/or screening results; and

(e) Any and all bench notes

4. Pursuant to N.C. Gen. Stat. 15A-903(a)(1)(d), the Defendant invokes his the
right to inspect and copy or photograph any materials in possession of the State
and, under appropriate safeguards, to inspect, examine, and test any physical
evidence or sample of physical evidence in possession of the State.

5. Pursuant to N.C. Gen. Stat. 15A-903(a)(2), the Defendant requests,
within a reasonable time prior to trial, as specified by the Court, that the
State provide the following to the Defendant:

(a) Notice to the defendant of any expert witnesses that the
State reasonably expects to call as a witness at trial;

(b) A report of the results of any examinations or tests
conducted by any State experts.

(c) The curriculum vitae of any State experts,

(d) The opinion, and the underlying basis for that opinion, of
any State expert.

6. Pursuant to N.C. Gen. Stat. 15A-903(a)(3), the Defendant requests that the State
provided, at the beginning of jury selection, a written list of the names of all other
witnesses whom the State reasonably expects to call during the trial.

7. The Defendant requests a complete copy of the Defendant's prior criminal record,
if any, including but not necessarily limited to:

a. All juvenile and adult detention, jail, prison, parole, probation, and pre-
sentence investigation records and reports;

- 3 -

b. All arrest, conviction, and adult and juvenile criminal offense records and
reports;

c. All records and reports of any law enforcement authority as that term is
defined in paragraph 5(a) above;

d. All records and reports of any detention or court authority;

e. All records and reports of any prosecuting authority as that term is defined
in paragraph 5(b) above;

8. The Defendant requests the opportunity to inspect and copy or photograph any
and all books, papers, documents, photographs, motion pictures, videotapes,
mechanical or electronic recordings, buildings and places, or any other crime
scene, tangible objects, or copies or portions thereof, which are within the
possession, custody or control of the State and which are material to the
preparation of the defense, or are intended for use by the State as evidence at the
trial or were obtained from or allegedly belonged to the Defendant.

9. The Defendant requests a copy of any and all search warrants, arrest warrants and
non-testimonial identification orders issued in connection with the case, as well as
any supporting affidavits, sufficient to allow the Defendant to determine whether
to proceed under N.C. Gen. Stat. 15A-971 et seq.

10. The Defendant requests a description of any and all pre-trial identification
procedures conducted by the State or any of its agents in connection with the
alleged crimes, and the date, time, place and persons present at such procedure,
sufficient to allow the Defendant to determine whether to proceed under N.C.
Gen. Stat. 15A-971, et seq.

11. The Defendant requests a description of any conversation between the Defendant
and any law-enforcement officer, official or agent, and the date, time, place, and
persons present at such time, sufficient to allow the Defendant to determine
whether to proceed under N.C. Gen. Stat. 15A-971, et seq.

12. The Defendant requests a description of any and all property or contraband seized
from the Defendant, Defendant's home, or an area under Defendant's control that
the State intends to offer as evidence at trial, or which led to any other evidence
the State intends to use at trial, and the time, place, and manner of any such
seizure, sufficient to allow the Defendant to determine whether to proceed under
N.C. Gen. Stat. 15A-971, et seq.;

13. The Defendant requests a description of any and all electronic, mechanical, visual

- 4 -
or photographic surveillance of the Defendant conducted by State or federal law-
enforcement officers, officials or agents, and the date, time, place and persons
present at such surveillance, sufficient to allow the Defendant to determine
whether to proceed under N.C. Gen. Stat. 15A-971, et seq.

14. The Defendant requests a description of any electronic, mechanical, visual, or
photographic surveillance of other persons, places or organizations conducted by
State or federal law-enforcement officers, officials or agents which resulted in the
interception and/or recording of any of the Defendant's conversations,
photographs of the Defendant, or other information relating to the Defendant, and
the date, time, location and manner of any such surveillance, sufficient to allow
the Defendant to determine whether to proceed under N.C. Gen. Stat. 15A-971,
et seq.

15. The Defendant requests information related to the nature of any other criminal
acts, or prior bad acts, allegedly committed by the Defendant which the State
intends to introduce as evidence in its case-in-chief or at sentencing, and the
particulars of those acts, including but not limited to the time and place the acts
were allegedly committed, whether the acts were the subject of any court
proceedings, and the results of any such proceedings.

16. The Defendant requests a statement indicating whether or not any informants
were involved in the investigation or preparation of the cases against the
Defendant.

17. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427
U.S. 97 (1976), United States v. Bagley, 374 U.S. 667 (1985) and Kyles v.
Whitley, 514 U.S. 419 (1995) any and all documents, reports, facts or other
information in whatever form which would tend to exculpate the Defendant,
mitigate the degree of the offense or the appropriate punishment, weaken or
overcome testimony adverse to the Defendant given by a State's witness, impeach
the credibility of a State's witness, or would otherwise tend to be favorable to the
Defendant in any way, including but not limited to:

a. Any notes or reports, in whatever form, which were prepared by any law-
enforcement officer, official or agent and which would tend to refute,
impeach or contradict any of the evidence the State intends to introduce at
trial, or which tends to show or indicate in any way that the Defendant did
not commit the crimes charged in the indictment or that he may have a
legal defense to such crimes;

b. Any evidence or information which would tend to indicate in any way that
someone other than the Defendant committed the crimes charged,
including but not limited to any reports concerning any investigation of

- 5 -
suspects other than the Defendant carried out in connection with this case
or containing a description of the alleged perpetrator that is inconsistent
with the physical characteristics of the Defendant;

c. The facts and circumstances surrounding any pretrial identification
procedure conducted by any law-enforcement officer, official or agent in
connection with this case in which any alleged witness failed to identify
the Defendant or identified someone other than the Defendant;

d. Any written, recorded or oral statements made by any person which would
tend to exculpate the Defendant or indicate in any way that Defendant may
not have committed the alleged crimes or that Defendant may have a legal
defense to such crimes;

e. The names and addresses of any witnesses who may have knowledge of
facts which might be favorable to the Defendant, or who were interviewed
by any law-enforcement officer, official or agent and failed to provide
inculpatory information concerning the Defendant;

f. Any statements previously made by a prospective witness for the State,
whether written or oral and whether made under oath or otherwise, which
are inconsistent or at variance in any way with what the witness is
anticipated to testify to at trial;

g. The complete prior criminal and juvenile records of all witnesses who may
testify for the State, the nature of any criminal charges under investigation
or pending against such witnesses in any jurisdiction, and a description of
any prior bad acts engaged in by any such witnesses;

h. The details of any promises or indications of actual or possible immunity,
leniency, favorable treatment or any other consideration whatsoever, or of
any inducements or threats, made or suggested by any State or federal
employee or agent to any person who has provided information to or will
testify for the State in this case, or to anyone representing such a person;

i. Any information suggesting any bias or hostility by any prospective
witness for the State toward the Defendant, or any other factor bearing on
the credibility of any prospective witness for the State, including but not
limited to any mental illness or condition, or dependence on or use of
alcohol or drugs of any kind, whether or not received legally; and

18. All additional information of the type requested above that comes to the attention
of the State or its agents after initial compliance with this request.

- 6 -
19. If the State intends to redact any portions of any discovery required to be provided
to the Defendant under N.C. Gen. Stat. 15A-903 et seq., then the Defendant
specifically requests that the State first seek a protective order, with notice to the
Defendant, from the Superior Court before any redacting is performed.

TI ME OF REQUEST

This request for voluntary discovery is made not later than the tenth working day after the
Defendant received notice of the return of a True Bill in the above-referenced matter. The
Defendant was notified of the return of a True Bill on J anuary 9, 2013.

WHEREFORE the Defendant respectfully prays unto this Honorable Court for the
following relief:

1. That the State voluntarily provide the aforementioned items of discovery within seven
(7) days of the service of this Request upon the State, pursuant to N.C.Gen.Stat.
15A-902(a);

2. That if the State fails or refuses to provide the requested voluntary discovery herein,
within the time period prescribed by law, that the Court treat this voluntary discovery
request as a motion for the Court to issue an Order compelling the Office of the
District Attorney to provide the required discovery pursuant to Article 48 of the North
Carolina General Statutes; and

3. For such other and further relief to which the Defendant may be entitled and which
the Court may deem just and proper.

This the 9
th
day of J anuary, 2013.

By:________________________________
State Bar No.: 25052
Cheshire, Parker, Schneider, & Bryan, P.L.L.C.
Raleigh, NC 27601
Telephone: (919) 833-3114
Facsimile: (919) 832-0739

- 7 -


This shall certify that a copy of the foregoing Request for Voluntary Discovery
(Alternative Motion for Discovery) was this day served upon the District Attorney by the
following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or official
depository under the exclusive care, custody, and control of the United States
Postal Service, addressed to the following:

__X__ by personally serving the Office of the District Attorney via hand delivery (ADA
);

_____ by transmitting a copy via facsimile transmittal to the Office of the District
Attorney; and/or

_____ by depositing a copy in the box for the Office of the District Attorney maintained
by the Clerk of Superior Court.

This the 9
th
day of J anuary, 2013.

By:__________________________________
Cheshire, Parker, Schneider, & Bryan, P.L.L.C.
Raleigh, NC 27601
Telephone: (919) 833-3114
Facsimile: (919) 832-0739

1


)
vs. ) MOTION FOR DISCLOSURE OF ALL
) ATTORNEY FILES & RECORDS
, ) RELATED TO VS.
) (10 CVS WAKE COUNTY)
)
Defendant. )
_________________________________________________________

NOW COMES, the Defendant, , by and through his undersigned counsel,
Maitri Mike Klinkosum, Attorney at Law, and hereby moves this Honorable Court, pursuant to
the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution,
Article I 19 and 23 of the North Carolina Constitution, N.C.Gen.Stat. 15A-903, Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny, or, in the alternative, Pennsylvania v. Ritchie,
480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), for an Order commanding the production of
the files and records held by the law firms of and , related to
the civil action filed against the Defendant captioned
10 CVS . In support of the foregoing
Motion, the Defendant would show unto the Court as follows:

1. is charged with one count of Second Degree Rape and one count of
Second Degree Sexual Offense. The indictment alleges that on or about the
September 26
th
, committed the alleged acts against

2. The trial of this matter is scheduled to begin on January 7
th
, 2013.

3. Although is alleged to have committed the acts on September 26
th
,
2009, the alleged acts were not reported to law enforcement until January 30
th
,
2010.

4. On March 2
nd
, 2010, 2010, the alleged victim and her husband filed a civil lawsuit
in Wake County Superior Court against claiming damages for the
criminal acts allegedly committed by as well as other alleged
tortuous conduct. On May 26, 2010 the alleged victim and her husband filed an
amended complaint, under the same civil case number ( ), naming
, as well as his brothers, , as defendants in the
civil action.

2

The Court Should Order the Files and Records of the Civil Action Lawyers
Be Disclosed to the Defense for Preparation for the Criminal Trial

5. The original civil complaint was filed before an indictment was issued against
. The original complaint in the civil action has a filing date of March 2 ,
2010. The indictment in the criminal matter is dated as being issued on April 6,
2010.

6. Upon information and belief, while the criminal investigation was still in process,
and before an indictment had been obtained against the lawyers for
the plaintiffs in the civil action, and , spoke
with, and may have investigated, the allegations made by the plaintiffs against

7. Based upon undersigned counsels prior experience in litigation involving
criminal matters with accompanying civil tort claims, undersigned counsel
believes that the civil action lawyers may have been allowed access to the
investigative files and evidence in the possession of law enforcement and the
Wake County District Attorneys office.

8. Further, based upon the fact that undersigned counsel received discovery from the
prosecution, which contained documents from the civil action, it is apparent that
the civil action lawyers spoke to, and shared information with, the Wake County
District Attorneys Office. It would stand to reason that the civil action lawyers
and the prosecution spoke and shared information with each other, as both parties
share a common goal: the civil and criminal prosecution of

9. The sharing of information, between the prosecution and the civil action lawyers,
is such that the interests and work between the two parties have become entwined
and comingled, sufficient for this Court to conclude that the actions of the civil
action lawyers fall within the purview of a private entity that obtains information
on behalf of a law enforcement agency or prosecutor in connection with the
investigation of the crimes committed or the prosecution of the defendant.
1

10. Because the actions of the civil lawyers fall within the purview of a private entity
that obtains information on behalf of a law enforcement agency or prosecutor in
connection with the investigation of the crimes committed or the prosecution of
the defendant,
2
the Court should order the civil action lawyers to provide any
and all files and records regarding their efforts and investigation in the civil
matter to the defense, for review pursuant to the criminal discovery statutes of
North Carolina.
3

1
N.C. Gen. Stat. 15A-903

2
Id.
3
Id.
3

11. Further, if the prosecution intends to call either of the civil action lawyers to
testify at s criminal trial, or if the prosecution intends to delve into the
issue of the aforementioned civil action during s criminal trial, such
attempts place the credibility of the civil action lawyers before the jury. As such,
in order to ensure that is afforded his right to confrontation and
opportunity for effective cross-examination, the Court should order the civil
action lawyers to provide any and all files and records regarding their efforts and
investigation to the defense for review.

12. Further, in order for the defense to determine whether it should call either of the
civil action lawyers to testify at s criminal trial, and thereby insuring
that is afforded his right to due process and the ability to present a
defense, the Court should order the civil action lawyers to provide any and all
files and records regarding their efforts and investigation to the defense for
review.

Alternative Theory of Disclosure: The Sharing of Information Between
Attorneys in the Civil Lawsuit and the Prosecution
Require the Files of the Attorneys in the Civil Lawsuit to
Be Provided to the Court for an In Camera Inspection

13. Upon information and belief, the civil action lawyers, prior to filing the
Complaint, were ethically required to conduct an investigation into the grounds
for filing the complaint in the civil matter.

14. Upon information and belief, such an investigation by the civil action lawyers
may have included interviews with witnesses involved in the criminal
investigation and/or witnesses not located and/or interviewed in the criminal
investigation.

15. If the investigation by the civil action lawyers includes interviews with witnesses,
whether or not said witnesses were interviewed as part of the criminal
investigation, such interviews may contain statements and/or evidence which
could be exculpatory to either through actual exculpatory means or
through information that could be used to impeach the testimony and credibility
of said witnesses.

16. Because the files of the civil action lawyers may contain information that is
exculpatory to if the Court does not agree that the files should be
provided directly to the defense in the criminal matter, the Court should conduct
4

an in camera inspection of the entire files of the civil action lawyers and provide
any exculpatory material found in said files to the defense.
4

17. Further, if the prosecution intends to call one or both of the civil action lawyers to
testify at the trial of the criminal matter, or if the prosecution intends to delve into
the issue of the aforementioned civil action, such action places the credibility of
the civil action lawyers before the jury. As such, in order to ensure that
is afforded his right to confrontation and opportunity for effective cross-
examination, the Court should conduct an in camera inspection of the entire files
of the civil action lawyers and provide any exculpatory material found in said
files to the defense.
5

18. Further, in order for the defense to determine whether it should call either of the
civil action lawyers to testify at s criminal trial, and thereby insuring
that is afforded his right to due process and the ability to present a
defense, the Court conduct an in camera inspection of the entire files of the civil
action lawyers and provide any exculpatory material found in said files to the
defense.
6

19. Based upon the assertions as set forth above, the defense would assert that the
communication and sharing of information between the lawyers in the civil action
and the criminal prisecution provide sufficient foundation for this Court to order
that the civil action lawyers provide the entire files related to the civil action of
vs.
10 CVS to the Court for an in camera inspection.

WHEREFORE, the Defendant respectfully prays unto this Honorable Court for
the following relief:

1. That should the Court require further evidence regarding this Motion, that the
Court schedule an evidentiary hearing in this matter, providing both sides with
sufficient time to subpoena the necessary witnesses and documentation for said
hearing;

2. That the Court enter an Order requiring the disclosure of any and all files and
documents held by Attorneys and in connection
with the case of vs.
10 CVS to the defense; or

4
See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); State v. Love, 57 F.3d 1305 (4
th

Cir. 1995); State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651 (1988), and State v. Hardy, 293 N.C. 105, 235 S.E.2d
828 (1977).
5
Id.
6
Id.
5

3. In the alternative, that the Court order the disclosure of the any and all files and
documents held by Attorneys and in
connection with the case of
10 CVS , to the Court for
review by the Court, that the Court disclose to the defense any favorable and
material evidence that is gleaned from said review, and that the Court place copies
of the files and documents disclosed, under seal, in the court file of this matter for
potential appellate review; and

4. For such other and further relief to which the Defendant may be entitled and
which the Court may deem just and proper.

This the 18
th
day of December, 2012.

By:___________________________________________
Attorney at Law
Cheshire, Parker, Schneider, & Bryan, PLLC
Raleigh, NC 27601
Telephone: (919) 833-3114
Facsimile: (919) 832-0739

6


This shall certify that a copy of the foregoing Motion for Disclosure of All Attorney Files &
Records Related to vs. (10 CVS ) was this day served upon the District
Attorney by the following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or official depository
under the exclusive care, custody, and control of the United States Postal Service,
properly addressed to Office of the District Attorney;

__X__ by personally serving the Office of the District Attorney via hand delivery (Assistant
District Attorney );

__X__ by transmitting a copy via facsimile transmittal to the following individuals:

Attorney

Raleigh, NC 27601

Attorney

Raleigh, NC 27601

_____ by depositing a copy in the box for the Office of the District Attorney maintained by the
Clerk of Superior Court.

This the 18
th
day of December, 2012.

By:___________________________________
Attorney at Law
P.O. Box 1029
Raleigh, NC 27602
Telephone: (919) 833-3114
Facsimile: (919) 832-0739
New Felony Defender Training
Chapel Hill, NC
Thursday, February 11, 2010 to Friday, February 12, 2010
NEW FELONY DEFENDER TRAINING
A PRACTICAL GUIDE TO
BRADY MOTIONS:
Getting What You Want
Getting What You Need
Ira Mickenberg
6 Saratoga Circle
Saratoga Springs, NY 12866
(518) 583-6730
FAX (518) 583-6731
[email protected]
SOME BASIC INFORMATION ABOUT BRADY CLAIMS
I. THE PROBLEM OF OPEN FILE DISCOVERY
It has become custom in many courts and with many prosecutors that discovery in
criminal cases operates on a streamlined open file process. Under the open file system,
defense counsel is permitted to look at the States file on the case, and the prosecutions
discovery obligations are then satisfied.
This sounds good in theory after all, why bother with time-consuming motions and
arguments when the State is willing to let you look at everything they have?
In practice, though, every defense lawyer knows that open file discovery doesnt work
anything like it is supposed to. The files we are shown often do not contain some police reports,
witness statements, and other crucial documents. Materials that contradict the States case or
support a defense are frequently missing. Evidence that corroborates the defendants story is
mysteriously absent. Items that would impeach the police are nowhere to be found.
Not only is the discovery often empty of anything that would help the defense
prejudicial and damaging evidence that we could prepare to refute (if only we knew about it) is
also frequently absent. Sometimes it seems that no trial is complete without the prosecutor
producing a surprise witness, statement, or piece of evidence that never made it into their
open file discovery.
The practice of open file discovery has become the customary way of doing things in
many places not because it is good, or even legal, but because thats the way its always been
done. Many judges and prosecutors even assume that because it has been around so long, it
must be legally required. This is, of course, completely wrong. In fact, the U.S. Supreme Court,
in Strickler v. Greene, 527 U.S. 263, 283, 119 S.Ct. 1936, 1949 (1999), explicitly held that a
prosecutors open file discovery policy in no way substitutes for or diminishes the States
obligation to turn over all exculpatory evidence pursuant to Brady.
Regardless of what customs, practices and traditions may have grown up around
discovery, the fact remains that the U.S. Constitution, the North Carolina Constitution, and the
rulings of the North Carolina Supreme Court all supercede local open file customs. And
fortunately for the defense bar, all of those legal resources require that we get a lot more
discovery than most open file policies provide. If we are to get meaningful discovery, we must
use those resources to compel the courts and prosecutors to follow the law, and release the
information our clients need to get a fair trial.
1
II. THE DIFFERENCE BETWEEN DISCOVERY AND BRADY
It is important to distinguish between the kind of discovery we are entitled to under state
and local statutes, rules and customs, and the U.S. Constitutional requirement that the State turn
over to the defense all exculpatory evidence (Brady material).
Every state is free under the Constitution to establish whatever discovery rules it wants.
Some states provide virtually no discovery at all. For example, New York does not even require
the State to give defense counsel a witness list. This does not violate the Constitution. Other
states require total discovery. For example, Florida gives the defense an absolute right to take a
sworn deposition of all prosecution witnesses (including police officers and crime victims) prior
to trial. This too is constitutional. The discovery rules of most states, including North Carolina
fall somewhere in between these extremes. And in general, the Constitution doesnt care how a
state deals with discovery.
The Constitution is concerned with only one aspect of discovery prior to trial, the
prosecution must turn over to the defense all exculpatory evidence in its actual or constructive
possession. Failure to do so is a violation of Due Process Clauses of the Fifth and Fourteenth
Amendments. This rule applies regardless of how a state has chosen to structure its discovery
process. The main U.S. Supreme Court cases that establish this right are:
Brady v. Maryland, 373 U.S. 83 (1963)
Kyles v. Whitley, 514 U.S. 419 (1995)
Strickler v. Greene, 527 U.S. 263 (1999)
The generic term applied to the exculpatory evidence the State must turn over is Brady
material.
III. WHAT IS BRADY MATERIAL?
Brady says that the prosecution must disclose any information or material that is:
A. Material (and)
B. Relevant to guilt or punishment. (and)
C. Favorable to the accused. (and)
D. Within the actual or constructive knowledge or possession of anyone
acting on behalf of the State.
It is helpful to examine each of these factors individually, to get a clear idea of exactly
what kind of material the State is required to turn over:
2
A. WHAT DO WE MEAN BY MATERIAL?
Materiality is the most confusing aspect of the Brady standard. Many courts define
materiality in terms of the standard the defense must meet to get a conviction reversed when a
Brady violation is discovered after trial, and the issue is raised on appeal or at post-conviction
proceedings. In this context, materiality is usually defined as whether there was a reasonable
probability that the result of the trial would have been different if the exculpatory material had
been turned over before trial.
Other courts have recognized, though, that this standard is not really appropriate as a
guide for whether information must be turned over before trial. Those courts have usually
adhered to the language of Brady, Bagley and Kyles, all of which speak of the obligation to turn
over anything that is relevant to guilt or punishment and is exculpatory or favorable to the
defense.
B. WHAT IS RELEVANT TO GUILT OR PUNISHMENT?
This simply establishes that Brady material consists of anything that is helpful to the
defense at either the guilt or sentencing phase of a case. For example, assume that a robbery
victim identified the defendant as one of two people who robbed him, but also told police that the
defendant prevented the other robber from injuring him. This would be Brady material because it
is relevant to mitigating punishment even though it actually helps establish the defendants
guilt.
C. WHAT IS FAVORABLE TO THE ACCUSED?
It is essential to realize that as used in Brady, the terms favorable to the accused and
exculpatory are not limited to evidence that goes towards proving that the defendant is
innocent of the charges. Brady material is defined much more broadly, and the prosecution has
the obligation to turn over many things that dont directly go towards a claim of innocence.
For the purposes of Brady analysis, material that is favorable to the defense is anything
that meets the following criteria:
! It is exculpatory meaning that it tends to show that the defendant is
innocent of the charges. . . . or
! It may mitigate sentence. . . . or
! It can be used to impeach a state witness, or otherwise cast doubt on the
prosecution case. Impeachment evidence must be turned over even if has
nothing to do with the defendants innocence.
Again, it is a good idea to look at each of these criteria individually:
3
C-1. WHAT DO WE MEAN BY IS EXCULPATORY?
The most important thing to understand about the term is exculpatory, is that it is not
limited to things that prove the defendant did not commit the crime. Rather, it includes any
information or material that might lead the jury to conclude that the defendant should be found
not guilty of any of the crimes charged.
One constructive way of analyzing whether something is exculpatory is to look at the
different general categories (or genres) of defenses in criminal cases, and ask ourselves whether
the evidence we want to discover helps establish any of those categories. These genres (within
which almost all defenses fit) are as follows:
1. The criminal act never occurred. (Frame-up, for example)
2. The criminal act occurred, but the defendant was not the one who did it. (Alibi,
for example)
3. The criminal act occurred, the defendant committed it, but it wasnt legally a
crime. (Self-defense, for example)
4. The criminal act occurred, the defendant committed it, but it wasnt the crime
charged. (Lesser included offense, for example)
5. The criminal act occurred, the defendant committed it, but he was not legally
responsible. (Insanity, for example)
Any material that might help to establish any of these categories is Brady material, and
must be disclosed. Moreover, it doesnt matter whether the defendant has committed to raising a
defense with that information. As long as the material would help to establish a defense, it must
be turned over, and it is for the defense lawyer to determine whether and how he or she wishes to
use it.
Along the same lines, any material that is inconsistent with the prosecutors theory of the
case is Brady material, regardless of whether and how defense counsel is going to use that
material.
Due process also requires disclosure of any evidence that provides grounds for the
defense to attack the reliability, thoroughness, and good faith of the police investigation, to
impeach the credibility of the states witnesses, or to bolster the defense case against
prosecutorial attacks. Kyles v. Whitley, 514 U.S. 419, 442 n.134, 445-451 (1995).
To sum up:
Any material that helps the defense attack the reliability, thoroughness, or good
faith of the police investigation is discoverable under Brady. This is a terrific tool
for prying loose police reports that show inconsistent behavior or statements by
police, incompetence or failure to follow guidelines or protocols for investigation,
and general sloppiness in investigating the crime or in failing to follow leads or
investigate anything that wouldnt help convict your client. It is also very useful
4
for obtaining information about informants, deals and other crimes that may have
given witnesses a motive to lie in your case, or given the police a motive to frame
your client.
Even if something would not be admissible at trial, if it fits within the definition
of Brady material, it must be disclosed. The key to Brady is that the defense must
be given all favorable information it is then up to defense counsel to figure out a
way, if possible, to use it. Contrary to what many prosecutors believe, the fact
that a document or piece of information may be inadmissible does not relieve
them of their obligation to disclose it under Brady.
Even if the prosecutor thinks that the Brady material is unreliable or unbelievable,
he or she must disclose it. It is for defense counsel, not the prosecutor to decide
whether the Brady material is reliable enough to be used. For example: the excuse
that the other guy who confessed was crazy and unbelievable does not relieve
the prosecution from the due process obligation to inform the defense about the
other guy and his confession.
C-2. WHAT DO WE MEAN BY MITIGATE SENTENCE?
Information or material that mitigates sentence is:
# Anything that supports any argument you are permitted to make at sentence in
support of a less-than-maximum sentence.
# Anything the courts in your jurisdiction have held to be a mitigating factor at
sentencing.
A good technique for supporting a demand for Brady material that mitigates sentence is to
cite caselaw that either:
# Has explicitly held that such material is relevant to sentence. . . . or
# In which a court has considered such material in its sentencing determination,
even if the case itself was not explicitly about that material.
C-3. WHAT DO WE MEAN BY IMPEACH A STATES WITNESS?
< Anything that is inconsistent with the testimony of a States witness. This might
include prior statements of that witness, or any other information from any other
source that is inconsistent with the witnesss testimony.
< Anything that is inconsistent with other prior statements of a States witness.
< Any statements omitting something the witness later told the prosecutor, or
5
testified to. This covers the very common situation where a States witness at trial
remembers for the first time that the defendant confessed to him. When the
witness has such a miraculous recovered memory, any prior statements the
witness made that did not include the alleged confession become Brady material,
and must be turned over immediately.
D. WHAT IS WITHIN THE KNOWLEDGE OR POSSESSION OF ANYONE ACTING ON
BEHALF OF THE STATE?
The important thing to recognize about this requirement for Brady material is that it is not
limited to things that are within the actual knowledge or possession of the individual prosecutor
on the case. All of the following are included:
Anything actually known to or in the possession of anyone in the prosecutors
office.
Anything actually known to or in the possession of the police, even if the
prosecutor doesnt know about it.
Anything actually known to or in the possession of anyone else acting on behalf of
the State, even if the prosecutor doesnt know about it.
The prosecutor is therefore prohibited from hiding behind the excuse that I didnt know
about that. If the material was within the knowledge or possession of anyone working on behalf
of the prosecution, the State is considered to have constructive knowledge or possession of that
material, and must obtain and turn it over to the defense pursuant to Brady..
Even better, in Kyles v. Whitley, the U.S. Supreme Court explicitly said that the
individual prosecutor has an affirmative duty to learn of any favorable evidence known to the
other people and agencies acting on the governments behalf on the case, including the police.
II. USING YOUNGBLOOD v. WEST VIRGINIA, ___U.S.___, 126 S.Ct. 2188 (2006)
A. WHAT IS YOUNGBLOOD?
Youngblood is the latest pronouncement of the U.S. Supreme Court on Brady/Kyles
issues. In addition to reaffirming the rulings in Brady and Kyles, it explicitly orders the West
Virginia courts to stop avoiding some of the most important provisions of Brady and Kyles.
Thus it can be cited for the proposition that state court efforts to dilute the due process
protections concerning disclosure of exculpatory evidence by casting them in terms of state
evidentiary law will not be tolerated.
Youngblood involved a defendant accused of abducting three teenaged girls and sexually
assaulting one of them. His defense was consent. After he was convicted and sentenced to 26-60
years in prison, a defense investigator discovered that the victims had written a letter bragging
6
about how they framed Youngblood and how the entire incident was consensual. A police
officer who saw the letter before trial refused to take custody of it, and told the person who had
the letter to destroy it. The defense was never told about the letter until after Youngblood was
convicted. Consequently, the jury never found out about the letter, and neither the victims nor
the police officer were cross-examined about it at trial.
The defense filed a state habeas petition, but the trial judge denied the petition, holding
that the letter wasnt Brady material because it only went to impeachment, not innocence. The
trial court also held that it was not Brady material because the police officer never gave the letter
to the prosecutor, so the prosecution was not in possession of the material.
When the denial of Youngbloods habeas was appealed, the West Virginia Supreme
Court of Appeals, by a 3-2 vote, affirmed. The majority did not address the specific Brady/Kyles
claims, but merely held that the trial court did not abuse its discretion. Dissenting, two justices
said that there was a clear Brady violation.
B. THE HOLDING OF YOUNGBLOOD
The U.S. Supreme Court reversed. It made following explicit findings, and ordered the
West Virginia courts to follow them:
1. Impeachment material falls under Brady/Kyles and must be disclosed, even if it does
not directly go to innocence.
2. If the police know about exculpatory information (including impeachment material) it
is considered to be within the possession of the prosecution and must be disclosed pursuant to
Brady/Kyles, even if the police never told the prosecutor about it.
3. The prosecutor has an affirmative duty to seek out and learn of any exculpatory
material in the possession of anyone else acting on the governments behalf in the case, including
the police.
III. WHAT MUST WE DO TO GET BRADY MATERIAL?
A. HOW TO DEMAND BRADY MATERIAL
It is very tempting to store a form Brady motion on your computer, and file it in every
case, just changing the defendants name and case number. Unfortunately, the more general our
demand is, the easier it is for the prosecution to weasel out of its obligations. By specifically
tailoring our demand to the factual needs of our case, we make it difficult for the State or the
Court to claim that they didnt know something existed or was relevant.
This does not mean that we cant use the computer, or we cant use similar language in
our Brady motions. It does mean, however, that our Brady motions must contain sufficient facts
7
about the individual case to make our demand specific. At the very least, this means that we
should include facts in our demand that refer to:
T The prosecution witnesses we want information about. For example:
T Any and all information bearing on the truthfulness, bad character or bad
reputation of States witness John Smith, including but not limited to:
complete adult criminal record; complete juvenile record; any contempt
citations issued against the witness; any past instances of dishonesty,
fraud, lying or violence on the part of the witness that is known to the
State or its agents; any history of mental illness . . .
T The specific documents (or at least the kind of documents) we want to get. For
example:
T The name, address and telephone number of any witness who at any time
identified someone other than the defendant as the person who committed
the robbery charged in this case; any and all reports that mention in any
way that a witness, whether named or unnamed, identified someone other
than the defendant as the person who committed the robbery charged in
this case; the name, address and telephone number of any witness who at
any time stated that the defendant was not the person who committed the
robbery charged in this case; any and all reports that mention in any way
that a witness, whether named or unnamed, stated that the defendant was
not the person who committed the robbery charged in this case.
T The specific evidence we think may be out there that fits within Brady. For
example:
T Any medical or scientific records (including but not limited to the results
of any tests and the complete raw data upon which those test results were
based) that indicate that the defendant was not the person who committed
the crimes charged. This request is intended to encompass, but not be
limited to all blood testing, DNA testing, serology testing, fingerprint
testing, hair sample testing
T When enumerating the things you are asking for in your motion, use the phrase
including, but not limited to as a way of preventing the court or the prosecutor
from claiming that you unnecessarily limited the scope of your request.
In order to make specific demands for Brady material, we have to do several things before
writing the motion:
T Know your theory of defense. It is impossible to think of things that may be
exculpatory if we havent figured out what our defense is.
8
T Investigate. Often it will be impossible to complete an investigation before
motion papers are due. When that happens, do the best you can to base the
specifics of your Brady motion on what you know about the facts of your case.
Then supplement your requests for Brady material as you learn more about the
case.
T Follow up on what you learn. When you get some Brady material, investigate it,
and then make demands for additional material on anything your follow-up
investigation turns up.
B. WHEN TO DEMAND BRADY MATERIAL
The Brady process is not just for pre-trial. The prosecution has an ongoing constitutional
responsibility to turn over all exculpatory material, whenever they find it. Imbler v. Pachtman,
424 U.S. 409, 427,n.25, 96 S.Ct. 984 (1976), held that after a conviction the prosecutor also is
bound by the ethics of his office to inform the appropriate authority of after-acquired or other
information that casts doubt upon the correctness of the conviction.
This means that demanding Brady material is something we should be doing throughout
the case. For example:
In pre-trial motions
Just before trial begins to make sure that nothing has come up that the
prosecutor has neglected to mention
After the prosecutors opening to make sure there is nothing that may be in
conflict with what the prosecutor has just told the jury.
After the direct examination of every States witness to make sure the
prosecutor doesnt possess something that contradicts the testimony the witness
just gave.
After the prosecutors closing for the same reason you ask for it after his or her
opening.
Before sentencing to make sure the State is not withholding anything that would
mitigate sentence.
In your pre-trial motions and prior to sentencing, it is important to make the motion in
writing and to get the States response and the courts decision (if any) in writing.
When you make Brady applications during trial, be sure to make them on the record,
9
and to get the States response and the courts ruling on the record. This is absolutely essential
if we are to have a remedy when we discover months later that the State lied about something.
C. BRADY DURING POST-CONVICTION
When Brady material turns up after a defendant has been convicted and sentenced, a state
post-conviction or habeas corpus petition is usually the appropriate way to raise the issue. This is
standard practice. But what can be done when the Brady material is discovered after the
defendant has not only been convicted, but lost his or her appeal, and lost a post-conviction case?
In such cases, there are usually serious procedural problems with filing a second, or successor
habeas. In particular, the defendant must show cause why he did not raise the claim in his first
petition, and actual prejudice from the violation.
In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1949 (1999), the U.S. Supreme
Court held that when a defendant files a successor habeas under Brady, if he proves that the State
withheld evidence, that will constitute cause for not presenting the claim earlier.
It is essential that we take advantage of this law by:
T Remaining vigilant for concealed Brady material even after conviction.
T Raising the claim even after a first habeas has failed.
IV. REFUTING THE PROSECUTORS ARGUMENTS
USING KYLES v. WHITLEY, 514 U.S. 419, 115 S.Ct. 1555 (1995)
The most significant Brady case of the past 30 years has been Kyles v. Whitley, 514 U.S.
419 (1995). The importance of Kyles lies in the fact that the U.S. Supreme Court took the
opportunity to explicitly refute virtually every excuse prosecutors have traditionally used to avoid
turning over Brady material at trial, and to avoid reversals on appeal and habeas corpus when
they are caught in a Brady violation. It is therefore essential that we become familiar with Kyles,
and use it at every opportunity to refute the States arguments.
The following is a list of many rulings from Kyles that are helpful in refuting common
incorrect arguments made by the prosecution at trial, appeal, and post-conviction:
Materiality: The State Argues that the Withheld Material Would Not Have Resulted in an
Acquittal
Kyles: The question is not whether the defendant would more likely than not have received a
10
different verdict with the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different
result is accordingly shown when the Governments evidentiary suppression undermines
confidence in the outcome of the trial.
Materiality: The State Argues that Even Without the Withheld Material, the Evidence was
Sufficient to Convict
Kyles: A defendant need not demonstrate that after discounting the inculpatory evidence in light
of the undisclosed evidence, there would not have been enough left to convict. The possibility of
an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict.
. . . None of the Brady cases has ever suggested that sufficiency of evidence (or insufficiency) is
the touchstone.
Materiality: The Prosecutor Argues on a Brady Appeal of Post-Conviction that The Withheld
Evidence Wasnt Important
Kyles: The U.S. Supreme Court suggests that defense counsel look to (and cite) the prosecutors
closing argument at trial to show that the State argued that the subject matter of the withheld
evidence was very important. In Kyles, for example, the prosecution withheld evidence that cast
doubt on the credibility and observational powers of a witness. On appeal, the State argued that
this wasnt material under Brady, because the witness was not important. During closing
argument at trial, though, the prosecutor had vehemently argued that those same witnesses were
very important and highly credible. The Supreme Court viewed this as a strong indication that
the withheld information about the witness credibility was material.
Harmless Error: The State Argues that Even Though there was a Brady Violation, it was
Harmless Error
Kyles: Once a reviewing court has found constitutional [Brady] error, there is no need for further
harmless-error review . . . . [a Brady error] could not be treated as harmless.
The Prosecutor Says, I Didnt Know About that Information the Police Never Told Me
Kyles: The individual prosecutor has a duty to learn of any favorable evidence known to the
others acting on the governments behalf in the case, including the police.
The Prosecutor Says, None of the Items We Failed to Disclose Would Have Changed the Jurys
Mind.
11
Kyles: Brady does not require a series of independent materiality decisions for each individual
piece of information withheld. Rather, it requires, a cumulative evaluation to determine
whether the cumulative effect of all the pieces of information the State failed to disclose rises to
the level of Brady materiality.
Finally, Kyles determined that the following kind of information is all Brady material that
must be disclosed:
< Inconsistent descriptions by different witnesses of the criminal.
< Inconsistent descriptions by different witnesses of the crime.
< The fact that some of the witnesss descriptions of the criminal matched the police
informant
< That there were pending charges against the police informant
< That there was an ongoing investigation of the police informant concerning other
crimes.
< That the police informant made inconsistent statements to the police about the
crime and about his accusation of the defendant
< That the police had other leads and information that they failed to follow up on or
investigate, that could have pointed the finger at someone other than the
defendant.
< That before accusing the defendant, one of the witnesses previously said that she
had not actually seen the crime
< That a witnesss description of the crime and/or the criminal became more
accurate and more certain after the witness met with police and/or prosecutors,
or after the witness testified at a first hearing or trial.
< That a witnesss prior statements omit significant details or facts that the witness
remembered at trial.
< That a witnesss trial testimony omitted significant details or facts that the witness
mentioned in prior statements.
< That a witness or informant made statements that incriminated himself in the
crime charged against the defendant.
Please read Kyles before making your next Brady demand.
12
1/28/2013
1
Developing an Investigation
and Discovery Plan
2013 New Felony Defender Training
February 13 15, 2013
UNC School of Government
Chapel Hill, NC
Mike Klinkosum
Attorney at Law
Raleigh, NC 27601
(919) 833-3114
[email protected]
District Court
No right to formal discovery until
case goes to Superior Court
Sources of informal discovery:
Client
Clients family or friends
Law enforcement, if they will talk to you
Motions filed in District Court
Motion to Modify Bond
Demand for Probable Cause Hearing
District Court
Bond Hearings: Motion to Modify
Bond
Can be good source for discovery
Article 26; 15A-531 547.1
State will likely lay out some facts about the
case in opposition
Good opportunity to show your clients you
are on their side
Also shows them the criminal justice system
is not on their side
1/28/2013
2
District Court
Demand for Probable Cause
Hearing
Filed in District Court
Governed by Article 30 (15A-611 through 615)
Also 15A-606 addresses demand and waiver of PC
If you can get one:
Excellent source of discovery
Opportunity to cross-examine states witnesses
File motion for recordation of PC hearing
Get order for transcription of hearing
Motion to continue PC hearing is not timely unless
made 48 hours prior to PC hearing after that, must
have extraordinary cause. 15A-606(f)
Trade off PC hearing for early discovery?
Superior Court
Statutory Discovery
Request for Voluntary Discovery (Article 48; 15A-901
through 910)
After indictment/ PC hearing/ waiver of PC hearing
No later than 10 working days after
I f negative/ no response or 7 days pass after
request you may then file motion for discovery
Tip: File Request for/ Alternative Motion for
Voluntary Discovery
Prevents you from having to file motion after filing
Request
File the Request/ Alternative Motion! (protect
record)
Superior Court
Statutory Discovery
15A-903 governs what you get
You get everything!!!
complete files of all law enforcement and
prosecutorial agencies
Defendants statements
Co-defendants statements
Witness Statements
I nvestigating officers notes
Results of tests and examinations
or any other matter obtained during the
investigation of the offenses.
1/28/2013
3
What is Discovery?
any other matter or evidence
obtained
Photographs
Physical evidence
Videos
Weapons
Biological evidence
Polygraph results
Fingerprint cards
Anything collected in the course of the
investigation!!!
Superior Court
Statutory Discovery
Request for Discovery should include everything (see
handout)
Cite NC Statutes, and federal and state constitutions
(protect record)
Follow up with letters to ADA if no response
Always follow up with letters if you can
Shows a timeline of requests and good faitheffort to
work with ADA
Superior Court
Statutory Discovery
Discovery from requests form the 1
st
layer of
discovery litigation
Review original packet for other items missing
Example: Police report mentions surveillance tape, but
not tape in 1
st
discovery packet wheres the tape?
Example: Police report mentions substancesent to SBI
lab for testing wheres the lab report and accompanying
documents?
Always assume you DONT have everything
Follow up with professional request (letter) if no
response, file motions to compel additional discovery
1/28/2013
4
Sanctions for Noncompliance
with Discovery Rules
15A 910(a)
Order the offending party to produce the discovery or
permit inspection.
Grant a continuance or recess.
Prohibit the party from introducing evidence not
disclosed.
Declare a mistrial.
Dismiss the charge, with or without prejudice.
Enter other appropriate orders.
Sanctions for Noncompliance
with Discovery Rules
15A 910(b)
Prior to finding sanctions appropriate, the court
must consider (1) the materiality of the subject
matter and (2) the totality of the circumstances
surrounding an alleged failure to comply with
discoverystatutes.
15A 910(c)
Before imposing personal sanctions the court must
presume that prosecuting attorneys and their staff
have acted in good faith if they have made
reasonably diligent inquiry of law enforcement and
investigatory agencies and disclosed responsive
materials.
Constitutional
Discovery
APPLI ES I N
BOTH
DISTRICT
&
SUPERIOR COURT
1/28/2013
5
Brady v. Maryland
All Requests for Voluntary Discovery and
follow-up motions to compel discovery
should also request Brady material (i.e., any
evidence in hands of prosecution that is
both favorable and material to the accused
either to the issue of guilt or sentencing).
- Brady v. Maryland, 373 U.S. 83(1963)
Essential Brady Cases
U.S. Supreme Court
Brady v. Maryland, 373 U.S. 83 (1963);
United States v. Bagley, 473 U.S. 667 (1985);
Kyles v. Whitley, 514 U.S. 419 (1995) ;
Strickler v. Greene, 527 U.S. 263 (1999);
Banks v. Dretke, 540 U.S. 668 (2004);
Cone v. Bell, 2009 U.S. Lexis 3298, 129 S.Ct. 1769
(2009);
Smith v. Cain, 132 S.Ct. 627 (2012)
The Effect of the NC Open
File Discovery Statute on
Brady Duties
Z E R O
1/28/2013
6
Even Though North
Carolina has an Open
File Discovery Statute:
The Prosecutor still must seek out and disclose all
exculpatory information.
The Brady material must be in the open file or
statutory discovery package the State gives
defense counsel; Or
The Brady material must be separately turned over
to the defense -
EVEN IF IT DOESNT COME UNDER THE
STATUTE
WHO SAYS SO?
We certainly do not criticize the prosecutions use of
the open file policyWe merely note that, if a
prosecutor asserts that he complies with Brady
through an open file policy, defense counsel may
reasonably rely on that file to contain all materials
the State is constitutionally obligated to disclose
under Brady.
- Strickler v. Greene, 527 U.S. 263 (1999), footnote 23
What Is Brady
Material?
Any Information or Material That Is:
Relevant to Guilt or Punishment (and)
Favorable to the Accused (and)
Within the Knowledge of Anyone Acting on
Behalf of the State (and)
Is Legally Material
1/28/2013
7
WHAT IS FAVORABLE
TO THE ACCUSED?
Anything That is Relevant to Either Guilt
or Punishment and
Is Exculpatory or
May Mitigate Sentence or
Can Be Used to Impeach a State
Witness
Does Brady Really Include
Impeachment Material?
The due process duty of the prosecution under Brady . . .
encompasses impeachment evidence as well as exculpatory
evidence.
Strickler v. Greene, 527 U.S. 263 (1999)
Our cases make clear that Bradys disclosure requirements
extend to material that, whatever their other characteristics,
may be used to impeach a witness.
United States v. Bagley, 473 U.S. 667
(1985)
the duty to disclose [Brady] evidence encompasses
impeachment evidence .
State v. Mack, 656 S.E.2d. 1 (N.C.App.2008)
What is Within the
Knowledge of Anyone
Acting on Behalf of the
State
Actually known to the prosecutors office.
Actually known by the police, even if the
prosecutor doesnt know about it.
Known to anyone else acting on behalf of
the State, even if the prosecutor doesnt
know about it.
1/28/2013
8
What If the Prosecutor
Says,
I Didnt Know About
That?
The individual prosecutor has a duty to
learn of any favorable evidence known
to the other acting on the
governments behalf in the case,
including the police.
- Kyles v. Whitley, 514 U.S. 419 (1995)
What If the Prosecutor
Says,
I Was Acting in Good
Faith?
The failure to disclose evidence favorable to
the defense violates due process
irrespective of the good faith or bad faith of
the prosecution. . . . The prosecutors
motive for withholding exculpatory evidence
is immaterial.
- Brady; Kyles; Bagley
Evidence Subject to
Disclosure Under
Brady
Evidence lessening defendants degree of guilt; U.S. v. Bagley,
473 U.S. 667 (1985);
Evidence undermining the identification of defendant, Kyles
v. Whitley, 514 U.S. 419 (1995);
Evidence tending to show guilt of another ; Barbee v. Warden,
331 F.2d 842 (4
th
Cir. 1988);
Promise of leniency to prosecution witness, Giglio v. U.S., 405
U.S. 150 (1972);
Investigators notes/ letters on witness interviews useful for
impeachment; Strickler v. Greene, 527 U.S. 263 (1999);
Negative impeachment evidence; Ring v. U.S., 419 U.S. 18
(1995);
Exculpatory information in Social Services files; PA v. Ritchie,
480 U.S. 39 (1987);
1/28/2013
9
Evidence Subject to
Disclosure Under
Brady
False statements of witnesses; U.S. v. Minsky, 963 F.2d 879 (6
th
Cir.
1992);
Prior inconsistent statements of witnesses; Chavis v. NC, 637 F.2d
870 (4
th
Cir. 1980);
Bias of witnesses, specific threats of prosecution if witness does
not testify; Banks v. Dretke, 540 U.S. 668 (2004), State v. Prevatte,
346 N.C. 162, 484 S.E.2d (1977);
Information affecting a witness capacity to observe, perceive,
or recollect; J ean v. Rice, 945 F.2d 82 (4
th
Cir. 1976); State v. Williams,
330 N.C. 711, 412 S.E.2d 359 (1992);
Psychiatric evaluation of witnesses; Chavis v. NC, 637 F.2d 870 (4
th
Cir. 1980);
Criminal convictions or other bad acts of states witnesses; State
v. Kilpatrick, 343 N.C. 466, 471 S.E.2d 624 (1996);
Evidence discrediting police investigation; Kyles v. Whitley, 514
U.S. 419 (1995);
Evidence of defendants mental illness/ drug use; Cone v. Bell, 129
S.Ct. 1769 (2009)
MAKING A BRADY
MOTION
Ask for Everything that Might Be Out There
Be as Specific as Possible
Use the Phrase Including But Not Limited To
Always Factually Explain Why the Material is
Relevant to Your Theory of Defense
Always Factually Explain Why You Will Be Harmed
If You Dont Get the Material
Include Brady material in Request for Voluntary
Discovery
Third Party Discovery
Getting Discovery from Sources
Other than the Prosecutors and
LEOs
15A-903(a)(1)(b) Prosecutors office: refers to the
office of the prosecuting attorney.
15A-903(a)(1)(b1)investigatory agency includes any
public or private entity that obtains information on behalf
of a law enforcement agency or prosecutors office in
connection with the investigation of the crimes
committed or the prosecution of the defendant.
Makes moot State v. Pendleton, 175 N.C.App. 230, 622
S.E.2d 708 (2005) where NC Court of Appeals held DSS
files in statutory rape cases were off limits because DSS
not a prosecutorial agency.
1/28/2013
10
LEOs
Constitutional Third Party Discovery
14
th
Amendment Due Process Clause gives defendants
the right to obtain fromthird parties records that contain
favorable, material evidence, even if the records are
confidential under state and/ or federal law. See
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94
L.Ed.2d 40 (1987), State v. Bailey, 89 N.C. 212, 365
S.E.2d 651 (1988), State v. Kelly, 118 N.C.App. 589, 456
S.E.2d 861 (1995).
LEOs
Constitutional Third Party Discovery
Ritchie allows for in camera review of third party
discovery to preserve confidentiality. If records contain
favorable & material evidence the court must disclose
those parts of the records to the defense.
Must show that records may contain favorable, material
evidence, Love v. J ohnson, 57 F.3d 1305 (4
th
Cir. 1995).
LEOs
I ncamera reviewalternatives:
If the third party discovery comes into the hands of the
prosecution, statutory discovery applies and the defense
should get everything (remember complete file & any
other matter or evidence obtained).
Request in camera review as an alternative to giving
defense all the records. The judge does not know the
case like you do and will not be the most able reviewer to
determine what is favorable and material to your case.
1/28/2013
11
LEOs
Move to participate in the review of the
records pursuant to a protective order that
does not allow disclosure of records by
counsel unless permitted by court. (15A-909
authorizes protective orders).
Third Party Discovery:
What Can You Obtain???
Anythingfor which you have a good
faith basis, including:
Physicians records;
Mental health records;
Social Services records (see PA v. Ritchie);
Civil attorneys files.
Third Party Discovery:
But The Third Party Will
Claim Privilege
That is why the U.S. Supreme Court ordered in
camera inspection of records!
We find that Ritchies interest (as well as that
of the Commonwealth) in ensuringa fair trial
can be protected fully by requiring that the
CYS files be submitted only to the trial court
for in camera review.
1/28/2013
12
Do Not Forget About Public
Records
ACI S
Tax Records (Most online)
Real Estate Records (Register of Deeds)
Civil Filings
Divorce
Adoptions
Domestic Violence (50-Bs)
Reciprocal Discovery
Requirements
15A-905(a):
I f you intendto introduceit at trial, discloseit to theprosecution!
15A-905(b):
Reports of ExaminationsandTests. I f you intendto introduceit at trial, discloseit to the
prosecution!
15A-905(c):
Givenoticeof certain defenses:
Alibis
Duress
Entrapment
I nsanity
Mental Infirmity
DiminishedCapacity
Self-defense
Accident
Automatism
I nvoluntaryI ntoxication
VoluntaryI ntoxication
Requirements
15A-905(c)(1) Time Element
Notice of defenses must be given within 20 working days after the date
the case is set for trial pursuant to 7A-49.4, or a later time of set by the
court.
15A-905(c)(1)(a) Special Issues as to Alibis:
Alibis: Disclose identity of alibis witnesses no later than two weeks
before trial, if prosecution files motion for same and court orders
disclosure. If court orders disclosure, the court SHALL order the
prosecution to disclose any rebuttal alibis witnesses not later than one
week before trial.
15A-905(c)(1)(b) Special Issues as to Other Defenses:
Duress, Entrapment, Insanity, Automatism, or Involuntary Intoxication:
Notice by the Defendant shall contain specific information as to the
nature and extent of the defense.
1/28/2013
13
Requirements
15A-905(c)(3) EXPERTS:
Give notice of any expert witnesses the defendant
reasonably expects to call as a witness at trial. Must
also disclose:
Report of results of examinations or tests conducted
by expert;
Experts CurriculumVitae;
Experts OpinionANDunderlyingbasis for opinion;
All within reasonable time prior to trial or as set by
court.
Requirements
15A-905(c)(3) List of Witnesses
Givenprior to jury selection;
List of names of all witnesses defense reasonably
expects to call duringthetrial;
No disclosure if defense certifies, in writing and under
seal, that disclosure would subject witnesses or
others to physical or substantial economic harm or
coercion, or that there is other particularized
compellingneednot to disclose.
If there are witnesses defendant did not reasonably
expect to call, the court may, upon a good faith
showing, allowthewitnesses to be called.
SENTENCING
1
SENTENCINGINSUPERIORCOURT
NewFelonyDefenderTraining
February2013
JamieMarkham
[email protected]
(919)8433914
STEPSFORSENTENCINGAFELONYUNDERSTRUCTUREDSENTENCING
1. Determinetheapplicablelaw
2. Determinetheoffenseclass
3. Determinethedefendantspriorrecordlevel
4. Consideraggravatingandmitigatingfactors
5. Selectaminimumsentence
6. Determinethemaximumsentence
7. Chooseasentencedisposition
Step1:DETERMINETHEAPPLICABLELAW
Lookatthedateofoffensetodeterminethelawapplicabletothedefendantscase:
PreFairSentencing.OffensescommittedbeforeJuly1,1981.
FairSentencing.OffensescommittedonorafterJuly1,1981,andpriortoOct.1,1994.
StructuredSentencing:
OffensescommittedonorafterOctober1,1994;
OffensescommittedonorafterDecember1,1995;
ReportableClassB1EsexcrimescommittedonorafterDecember1,2011(tableof
maximumsonly).
SomecrimeshavetheirownsentencingrulesasidefromorinadditiontoStructuredSentencing:
Firstdegreemurder,G.S.15A2000,etseq.;
Drugtrafficking,G.S.9095.
Step2:DETERMINETHEOFFENSECLASS
Offenseclassrulesforinchoateoffenses(unlessotherwiseprovidedbylaw):
Offense
Class
Aidingandabetting
Accessorybeforefact(145.2)
Attempt(142.5)
Conspiracy(142.4)
Solicitation(142.6)
Accessoryafterfact(147)
Sameasprincipalfelony Oneoffenseclasslower Twooffenseclasseslower
A A B2 C
B1 B1 B2 C
B2 B2 C D
C C D E
D D E F
E E F G
F F G H
G G H I
H H I Class1misd.
I I Class1misd. Class2misd.
2
Step3:DETERMINETHEDEFENDANTSPRIORRECORDLEVEL
Usetheappropriatepriorrecordlevelworksheet(AOCCR600),basedontheoffensedateofthecrimebeing
sentenced.Thepointrangesassignedtoeachrecordlevel(setoutinG.S.15A1340.14(c))wereamendedfor
offensescommittedonorafterDecember1,2009.
Burdenofproof.TheStatebearstheburdenofproving,byapreponderanceoftheevidence,thataprior
convictionexistsandthattheoffenderbeforethecourtisthesamepersonastheoffendernamedtheprior
conviction.Apriorconvictionmaybeprovedby:
Stipulation;
Courtrecordsoradministrativerecords;or
Anyothermethodfoundbythecourttobereliable.G.S.15A1340.14(f).
Rulesforwhatcountsforpriorrecordpoints:
Countapriorconvictionforpointsbasedontheoffenseclassassignedtoitonthedateoftheoffense
forwhichthedefendantisnowbeingsentenced.G.S.15A1340.14(c).
Multipleconvictions
Countonlyasingleconvictionfromeachcalendarweekofsuperiorcourt,orsession
(generally,oneday)ofdistrictcourt.15A1340.21(d).
Convictionsonappeal:
Districtcourtconvictionscountwhenthedefendanthasnotgivennoticeofappealandthe
timeforappealhasexpired.
Superiorcourtconvictionscountregardlessofwhethertheconvictionisonappealtothe
appellatedivision.G.S.15A1340.11(7).
COUNT:
Allfelonyconvictions.
ClassA1andClass1nontrafficmisdemeanors.
Impaireddriving,commercialimpaireddriving,andmisdemeanordeathbyvehicle.
Prayerforjudgmentcontinued(PJC).Statev.Canellas,164N.C.App.775(2004).
DONOTCOUNT:
Class2andClass3misdemeanors.
Misdemeanortrafficoffensesotherthanimpaireddriving,commercialimpaireddriving,and
misdemeanordeathbyvehicle.
Infractions.
Contempt.Statev.Reaves,142N.C.App.629(2001).
Probationrevocations.
Juvenileadjudications.
Crimesfromotherjurisdictions:
Felonies:CountasClassIbydefault.G.S.15A1340.14(e).
Misdemeanors:CountasClass3misdemeanorbydefault.
IfState/defendantprovessubstantialsimilarity(preponderanceoftheevidence)toaNC
offense,countforpointsliketheNCoffense.
Substantialsimilarityisaquestionoflawwhichmustbefoundbythejudge
stipulationsareineffective.Statev.Bohler,681S.E.2d801(2009).
Thecourtshouldbaseitsdeterminationonacomparisonoftheotherstates
criminalstatutestothecriminallawsofNorthCarolina.Statev.Rich,130N.C.App.
113(1998).
IfanoutofstatecrimehaselementsthataresubstantiallysimilartomultipleNorth
Carolinaoffenses,andtheprosecutorreliesonlyonthestatutorydefinitionsin
provingsubstantialsimilarity,theruleoflenityrequiresthatthecourtassignrecord
pointscorrespondingtothelessseriousNorthCarolinaoffense.Hanton,175N.C.
App.250(2006).
3
Priorrecordbonuspoints
+1priorrecordpointifalltheelementsofthepresentoffenseareincludedinanyprior
offenseforwhichtheoffenderwasconvicted,regardlessofwhethertheprioroffensewas
usedindeterminingthedefendantspriorrecordlevel.G.S.15A1340.14(b)(6).
Thisfactorisaquestionoflawtowhichthedefendantmaynotvalidlystipulate.
Statev.Prush,185N.C.App.472(2007).
+1priorrecordpointiftheoffensewascommittedwhiletheoffenderwasonprobation,
parole,orpostreleasesupervision,orwhiletheoffenderwasservingasentenceof
imprisonment,orwhiletheoffenderwasonescapefromasentenceofimprisonment.G.S.
15A1340.14(b)(7).
TheStateneednotallegeinthechargingdocumentthatitintendstoestablishthis
point,butitmustgive30daysnoticeofitsintenttodoso.G.S.15A1340.16(a6).
Priorrecordrulesrelatedtosentencingofparticularcrimes:
Habitualfelon:
Priorconvictionsusedtohabitualizeadefendantunderthehabitualfelonlawdo
notcounttowardthedefendantspriorrecordlevelwhensentencingthe
habitualizedcrime.G.S.147.6.
TheStateisfreetouseadefendantsleastseriouspriorfeloniesinahabitualfelon
indictment,leavingmoreseriousfeloniestocountforpriorrecordlevelpurposes.
Statev.Cates,154N.C.App.737(2002).
Whenapreviousfelonyconvictionlistedinahabitualfelonindictmentwas
consolidatedwithalesserconviction,thelesserconvictionmaycounttowardthe
defendantspriorrecordlevelwhensentencingforthehabitualizedcrime.Statev.
Truesdale,123N.C.App.104(1999).
Habitualbreakingandenteringstatusoffense:Anyconvictionusedtoestablishapersons
statusasahabitualbreakingandenteringstatusoffenderdoesnotcountforpriorrecord
pointswhensentencingthehabitualizedoffense.G.S.147.31.
HabitualDWI:ThepriormisdemeanorDWIoffensesusedtoqualifyapersonasahabitual
impaireddriverdonotcountforpriorrecordpointswhensentencingthehabitualDWI.
Statev.Gentry,135N.C.App.107(1999).
However,whenapersonwithpriormisdemeanorDWIconvictionsandaprior
habitualDWIconvictionislatersentencedforanotherfelony,themisdemeanor
DWIsandthehabitualDWIallcountforpriorrecordpoints.Statev.Hyden,175N.C.
App.576(2006).
Failuretoregisterasasexoffender:Thepriorsexcrimethatcausedtheoffendertobe
placedontheregistrycountsforpriorrecordpointswhensentencingaconvictionforfailure
toregisterasasexoffender.Statev.Harrison,165N.C.App332(2004).
Possessionoffirearmbyafelon:Thepriorfelonythatcostthedefendanthisorhergunsin
thefirstplacecountsforpriorrecordpointswhensentencingaconvictionforpossessionof
afirearmbyafelon.Statev.Best,__N.C.App.__,713S.E.2d556(2011).
Step4:CONSIDERAGGRAVATINGANDMITIGATINGFACTORS
Aggravatingfactors
Notice
TheStatemustprovidethedefendantwrittennoticeofitsintenttoproveaggravating
factorsatleast30daysbeforetrialortheentryofaguiltyornocontestplea.Thenoticemust
listallthefactorstheStateseekstoestablish.Adefendantmaywaivethatrighttonotice.G.S.
15A1340.16(a6).TheStateshoulduseformAOCCR614togivenotice.
Statutoryaggravatingfactorsneednotbepledinthechargingdocument.Nonstatutory
aggravatingfactorsmustbepled.G.S.15A1340.16(a4).
4
Proofofaggravatingfactors
TheStategenerallymustproveanaggravatingfactortothejurybeyondareasonabledoubt,
orthedefendantmustadmittotheaggravatingfactor.G.S.15A1340.16(a).
Admissionsoftheexistenceofanaggravatingfactormustbeconsistentwiththeprovisions
ofG.S.15A1022.1.(Amongotherthings,thecourtmustaddressthedefendantpersonally
andadvisehimorherthatoftherighttoajurytrialontheaggravatingfactorandtheright
toprovemitigatingfactorstothesentencingjudge.)
Thejuryimpaneledforthetrialofthefelonymay,inthesametrial,alsodetermineifoneor
moreaggravatingfactorsispresent,unlessthecourtdeterminesthattheinterestsofjustice
requirethataseparatesentencingproceedingbeusedtomakethatdetermination.
Weighingofaggravatingfactors
Ifaggravatingfactorsarepresentandthecourtdeterminestheyaresufficienttooutweigh
anymitigatingfactorsthatarepresent,itmayimposeasentencethatispermittedbythe
aggravatedrange.
Theweighingofaggravatingandmitigatingfactorsisamatterofdiscretionforthejudge.
Statev.Vaughters,__N.C.App.__,725S.E.2d17(trialcourtdidnoterrwhenitfoundthat1
aggravatingfactoroutweighed19mitigatingfactors).
Thecourthasdiscretiontoenterapresumptiverangesentence,evenifitfindsmitigating
factorsandfindsthattheyoutweighfactorsinaggravation.State.v.Bivens,155N.C.App.
645(2002).
Additionalrulesforaggravatingfactors
Evidencenecessarytoproveanelementoftheoffenseshallnotbeusedtoproveanyfactor
inaggravation.G.S.15A1340.16.Thetrialjudgeshouldinstructthejuryonthispointoflaw.
Statev.Barrow,__N.C.App.__,718S.E.2d673(2011).
Thesameitemofevidenceshallnotbeusedtoprovemorethanonefactorinaggravation.
EvidencenecessarytoestablishthatanenhancedsentenceisrequiredunderG.S.
15A1340.16Amaynotbeusedtoproveanyfactorinaggravation.
Thejudgeshallnotconsiderasanaggravatingfactorthefactthatthedefendantexercised
therighttoajurytrial.G.S.15A1340.16(d).
MitigatingFactors
Thedefendantmustprovemitigatingfactorsbyapreponderanceoftheevidence.
Step5:SELECTAMINIMUMSENTENCE
Chooseaminimumsentencefromtheappropriatecellonthefrontofthesentencinggrid,andinthe
desiredrange(presumptive,aggravated,ormitigated)basedonweighingofaggravating/mitigating
factors.
Step6:DETERMINETHEMAXIMUMSENTENCE
Flipthegridover.Findthemaximumsentencethatcorrespondstotheselectedminimumsentence
onthebackoftheappropriatesentencinggrid.Besuretousetheportionofthetableapplicableto
theoffenseclassbeingsentenced.
OffensesbeforeDecember1,2011:
ClassFI: Maximumis120%oftheminimum
ClassB1E: Maximumis120%oftheminimum,plus9(9monthPRS;
60monthPRSforsexoffenders)
OffensesonorafterDecember1,2011:
ClassFI: Maximumis120%oftheminimum,plus9(9monthPRS;
60monthPRSforsexoffenders)
ClassB1E: Maximumis120%oftheminimum,plus12(12monthPRS)
ClassB1Esexcrimes: Maximumis120%oftheminimum,plus60(60monthPRS)
5
Step7:CHOOSEASENTENCEDISPOSITION
A=Active
Ifthecourtimposesactivepunishment,thedefendantisincarceratedforthedurationofhisorher
sentenceofimprisonment.
I=Intermediate
ForoffensescommittedbeforeDecember1,2011:Anintermediatesentencerequiresthatthecourt
suspendthesentenceofimprisonmentandimposesupervisedprobationthatmustincludeoneofthe
sixconditionssetoutinG.S.15A1340.11(6):
Specialprobation(asplitsentence)
Residentialprogram
Electronichousearrest
Intensivesupervision
Dayreportingcenter
Drugtreatmentcourt
ForoffensescommittedonorafterDecember1,2011:Anintermediatesentencerequiresthatthe
courtsuspendthesentenceofimprisonmentandimposesupervisedprobationthatmayincludedrug
treatmentcourt,specialprobation,oroneormoreofthecommunityandintermediateprobation
conditionssetoutinG.S.15A1343(a1).Intensivesupervision,residentialprograms,andday
reportingcenterarerepealedasintermediateconditionsofprobation.
C=Community
ForoffensescommittedbeforeDecember1,2011:Acommunitypunishmentisanonactive
punishmentthatdoesnotincludeanyofthesixintermediateprobationconditions.Itmayconsistof
unsupervisedorsupervisedprobation,orafineonlywithoutprobation.G.S.15A1340.11(2).
ForoffensescommittedonorafterDecember1,2011:Acommunitypunishmentisanonactive
punishmentthatdoesnotincludedrugtreatmentcourtorspecialprobation.Itmayincludeanyof
anyoneormoreofthecommunityandintermediateprobationconditionssetoutinG.S.15A
1343(a1).Itmayconsistofunsupervisedorsupervisedprobation,orafineonlywithoutprobation.
CONSIDERATIONSFORACTIVESENTENCES
FelonysentencesareservedintheDepartmentofPublicSafety,DivisionofAdultCorrection(DAC).
G.S.15A1352(b).
FelonsenterDACwithapresumptionthattheywillservetheirmaximumsentence.Theymayreduce
theirmaximumsentencethroughasentencereductioncreditcalledEarnedTimeatratesestablished
byDAC(3,6,or9dayspermonth,dependingontheinmatesparticipationinworkandprogram
activities).StructuredSentencinginmatesmayalsoreceivecreditcalledMeritoriousTimefor
overtime,workinginharshconditions,orexemplaryacts.StructuredSentencinginmatesarenot
eligibleforGoodTimeorGainTime(thosearecreditsforDWIsandoldercases).Innocasemay
creditreducethetimeaninmateactuallyservesbelowtheminimumsentence,unlesstheAdvanced
SupervisedRelease(describedbelow)applies.G.S.15A1340.13(d).

6
Averagepercentageofminimumsentenceserved,byoffenseclass:
ClassB1C: 102%
ClassD: 105%
ClassEF: 106%
ClassG: 107%
ClassH: 111%
ClassI: 114%
CONSIDERATIONSFORPROBATIONARYSENTENCES
PERIODOFPROBATION
Defaultprobationlengthforfelonyprobation:
Communitypunishment:Notlessthan12normorethan30months;
Intermediatepunishment:Notlessthan18normorethan36months.
Thecourtmaymakespecificfindingsthatalongerorshorterperiodofprobationisnecessary.Ifthe
courtfindsthatalongerperiodofprobationisnecessary,thatperiodmaynotexceedamaximumof
5years.G.S.15A1343.2(d).
DELEGATEDAUTHORITY
Unlessthecourtsaysotherwise,aprobationofficerhasauthoritytoaddthefollowingconditionsof
probationincertaincircumstances:
Performcommunityservice
Submittoanelectronicallymonitoredcurfew
Submittosubstanceabuseassessment,monitoringortreatment
Participateinaneducationalorvocationalskillsdevelopmentprogram
Submittosatellitebasedmonitoring(certainsexoffendersonly;intermediateonly)
Submittoashortperiod(23days)ofjailconfinement
Submittohousearrestwithelectronicmonitoring
Reporttotheprobationofficermorefrequently
ContinuousAlcoholMonitoring(CAM),ifabstinenceisacondition(intermediateonly)
CONDITIONSOFPROBATION
Regularconditionsofprobation
Regularconditionsapplybydefaultandneednotbestatedaloudinopencourt.G.S.15A
1343(b).
Thecourtmaystrikeregularconditionsinitsdiscretion.
Specialconditionsofprobation:
StatutoryspecialconditionsaresetoutinG.S.15A1343(b1)andmaybeaddedinthe
discretionofthecourt.
Thecourtmay,initsdiscretion,addadditionaladhocconditionsthatarereasonablyrelated
totheoffenderscrimeandrehabilitation.
Specialprobation:Asplitsentence,atermofprobationthatincludesaperiodorperiodsof
incarceration.G.S.15A1351(a).
Themaximumactiveportionofthesplitisofthesentenceimposed.(NotethatforDWI,
themaximumactiveportionofthesplitsentenceisofthemaximumpenaltyallowedby
law.)
7
Imprisonmentmaybefornoncontinuousperiods(e.g.,weekends)
InnonDWIcases,allspecialprobationconfinementmustbecompletewithintwoyearsof
conviction.G.S.15A1351(a).
Thecourtmay,butisnotrequiredto,orderthedefendanttopayajailfeeof$40perdayof
splitsentenceconfinement.Thisistheposttrialjailfee.G.S.7A313.
Whenimposingasplitsentence,thecourtmay,initsdiscretion,creditanypretrial
confinementtoeithertheactiveportionofthesplitsentenceortothesuspendedsentenceof
imprisonment.G.S.15A1351.
CommunityandIntermediateprobationconditionsunderG.S.15A1343(a1)[onlyforoffenses
committedonorafterDecember1,2011]
Communityservice
Quickdipconfinementofupto18days,servedin23dayincrements,nomorethan6days
permonth,inthreeseparatemonths
Obtainasubstanceabuseassessment,monitoringortreatment
Participationinaneducationalorvocationalskillsdevelopmentprogram
SubmittosatellitebasedmonitoringifdescribedbyG.S.14208.40(a)(2)(certainsex
offenders)
AbstainfromalcoholandsubmittoCAM[offenseson/after12/1/12]
IntermediateconditionsofprobationunderG.S.15A1343(b4)(automaticallyapplytoadefendant
subjecttointermediatepunishmentunlessthecourtexemptsthedefendant)
Ifrequiredbytheprobationofficer,performcommunityservice
Notuse,possess,orcontrolalcohol
Remainwithinthecountyofresidenceunlessgrantedwrittenpermissiontoleave
Participateinanyevaluation,counseling,treatment,oreducationalprogramasdirectedby
theprobationofficer
Specialconditionsforsexoffenders:Certainconditionsarerequiredforoffendersconvictedofa
reportablesexcrimeoranoffensethatinvolvesthephysical,mental,orsexualabuseofaminor.G.S.
15A1343(b2).
Monetaryconditions:Unlessthecourtfindsthereareextenuatingcircumstances,anypersonplaced
onprobationshall,asaconditionofprobation,berequiredtopayallcourtcosts,fees,andattorney
fees.G.S.15A1343(e).
OPTIONSFORDEFENDANTSWITHMULTIPLECONVICTIONS
Whenadefendantisconvictedofmultipleoffenses,thecourthasbroaddiscretionindetermininghowthose
sentencesareservedrelativetooneanother.
Consolidationforjudgment.G.S.15A1340.15(b).
Permissibleforconvictionsarisingatthesametime;mostseriousoffensecontrols.
Concurrentsentences
Bydefault,sentencesrunconcurrently.G.S.15A1340.15(a).
Consecutivesentences
Thecourtmay,initsdiscretion,orderasentencetorunconsecutivelywith(thatis,beginat
theexpirationof)anothersentence.Thereisnostatutorylimitonthecourtsauthorityto
runfelonysentencesconsecutively.
Whenfelonysentencesarerunconsecutively,DACtreatsthemasasinglesentenceunder
G.S.15A1354(b).DACwillsumalloftheindividualminimumsentencestodeterminean
8
aggregateminimumsentence.Theaggregatemaximumsentencewillbethesumofallthe
maximums,less9monthsforeachofthesecondandsubsequentpostreleasesupervision
eligiblesentencesimposed.Thatsubtractionaccountsforthefactthat9extramonthsare
builtintoeverymaximumsentenceforapostreleasesupervisioneligibleClassFIfelony.
Becausethedefendantwillserveonlyasingle9monthtermofsupervisedreleaseuponhis
orherreleasefromprison,theduplicatetimebuiltintosecondandsubsequentfeloniesis
subtracted.
Contingentprobationsentence:Thecourtmayrunaprobationperiodconsecutivetoanactive
judgmentunderG.S.15A1346(b).
Probationperiodsrunconcurrentlywithoneanotherandmaynotbestacked.G.S.15A
1346(a).
DEFERRALSANDMITIGATEDSENTENCES
DEFERREDPROSECUTION
ClassHandIfelonydefendantsareeligibleforastatutorydeferredprosecutionunderG.S.15A
1341(a1).
ProsecutionmaybedeferredforapersonchargedwithaClassHorIfelonyora
misdemeanor,andthepersonmaybeplacedonprobationonmotionofthedefendantand
theprosecutorifthecourtfindsthat:
Prosecutionhasbeendeferredpursuanttoawrittenagreementwiththedefendant;
Eachknownvictimofthecrimehasbeennotifiedbysubpoenaorcertifiedmailand
beengivenanopportunitytobeheard;
Thedefendanthasnotbeenconvictedofanyfelonyorofanymisdemeanor
involvingmoralturpitude;
Thedefendanthasnotpreviouslybeenplacedonprobation;and
ThedefendantisunlikelytocommitanothercrimeotherthanaClass3
misdemeanor.
Themaxprobationperiodforadeferredprosecutionis2years.G.S.15A1342(a).
Aprosecutorsofficemayalsohavealocaldeferredprosecutionprogram,butthoseprograms
probablyshouldnotincludeprobation.
9096PROBATION
G.S.9096(a)conditionaldischargeismandatoryforeligibleconsentingdefendantswhopleadguilty
toorarefoundguiltyof
MisdemeanorpossessionofacontrolledsubstanceinSchedulesIVI;
FelonypossessionofacontrolledsubstanceunderG.S.9095(a)(3);
MisdemeanorpossessionofdrugparaphernaliaunderG.S.90113.22.
Tobeeligible,adefendantmust:
Havenopriorfelonyconvictionsofanytype;
HavenopriorconvictionsunderArticle5ofG.S.Chapter90;
HaveneverreceivedapriordischargeanddismissalunderG.S.9096orG.S.90113.14.
G.S.9096(a1)describesadiscretionaryconditionaldischargewithbroadereligibilityanda7year
lookbackperiodforpriordisqualifyingconvictions.
ProbationunderG.S.9096(a)maybeundersuchreasonabletermsandconditionsasthecourtmay
require.Thecourtmayallowthedefendanttoparticipateinadrugeducationprogram,butitisnot
mandatory.
ProbationimposedunderG.S.9096(a1)mustbefornotlessthanoneyearandshallcontaina
minimumconditionthatthedefendantenrollinandsuccessfullycompletedrugeducationschool,
unlessnoschoolisavailableorextenuatingcircumstancesapply.
9
EXTRAORDINARYMITIGATION
Extraordinarymitigationallowsthesentencingcourttoimposeanintermediatepunishmentforaclassof
offenseandpriorrecordlevelthatordinarilyrequiresanactivesentence.G.S.15A1340.13(g).
Toapplyextraordinarymitigationthecourtmustfindinwriting(usingAOCCR606)that:
Extraordinarymitigatingfactorsofakindsignificantlygreaterthaninthenormalcaseare
present;
Thosefactorssubstantiallyoutweighanyfactorsinaggravation;and
Itwouldbeamanifestinjusticetoimposeanactivepunishmentinthecase.
Extraordinarymitigationisunavailableif:
TheoffenseisaClassAorClassB1felony;
Theoffenseisadrugtraffickingoffenseoradrugtraffickingconspiracy;or
Thedefendanthasfiveormorepriorrecordpoints.G.S.15A1340.13(h).
ADVANCEDSUPERVISEDRELEASE(ASR)
AdvancedSupervisedRelease(ASR)providesanopportunityforcertaindefendantstobereleasedfrom
prisonbeforeservingtheminimumsentence.
Iftheprosecutordoesnotobject,thesentencingjudgemay,whenimposinganactivesentence,order
defendantsinthefollowinggridcellsintotoDACsASRprogram:
ClassDfelonies,priorrecordlevelsIIII
ClassEfelonies,priorrecordlevelsIIV
ClassFfelonies,priorrecordlevelsIV
AllClassGandHfelonies
Defendantswhocompleteriskreductionincentivesinprison(orwhoareunabletodosothrough
nofaultoftheirown)getreleasedontoPRSontheirASRdate
TheASRdateforapresumptiveoraggravatedrangesentenceisthelowestminimumsentenceinthe
mitigatedrangeforthedefendantsoffenseandpriorrecordlevel
TheASRdateforamitigatedrangesentenceis80%oftheimposedminimum.G.S.15A1340.18.
SUBSTANTIALASSISTANCE
Indrugtraffickingcasesonly,thecourtmaydepartfromthemandatorydrugtraffickingpunishmentand
reducethefine,imposeaprisontermlessthantheordinarilyapplicableminimumterm,orsuspendthe
prisontermandplacethedefendantonprobationifthepersonhasprovidedsubstantialassistanceinthe
identification,arrest,orconvictionofanyaccomplices,accessories,coconspirators,orprincipals.Thecourt
mustrecordafindingthatthedefendanthasrenderedsubstantialassistance.G.S.9095(h)(5).
*** Effective for Offenses Committed on or after 12/1/11 ***

FELONY PUNISHMENT CHART

PRIOR RECORD LEVEL
I
0-1 Pt
II
2-5 Pts
III
6-9 Pts
IV
10-13 Pts
V
14-17 Pts
VI
18+ Pts

A Death or Life Without Parole

A A A A A A
DISPOSITION
240 - 300 276 - 345 317 -397 365 - 456
Life Without
Parole
Life Without
Parole Aggravated Range
192 - 240 221 - 276 254 - 317 292 - 365 336 - 420 386 - 483 PRESUMPTIVE RANGE
B1
144 - 192 166 - 221 190 - 254 219 - 292 252 - 336 290 - 386 Mitigated Range
A A A A A A
157 - 196 180 - 225 207 - 258 238 - 297 273 - 342 314 - 393
125 - 157 144 - 180 165 - 207 190 - 238 219 - 273 251 - 314
B2
94 - 125 108 - 144 124 - 165 143 - 190 164 - 219 189 - 251
A A A A A A
73 92 83 - 104 96 - 120 110 - 138 127 - 159 146 - 182
58 - 73 67 - 83 77 - 96 88 - 110 101 - 127 117 - 146
C
44 - 58 50 - 67 58 - 77 66 - 88 76 - 101 87 - 117
A A A A A A
64 - 80 73 - 92 84 - 105 97 - 121 111 - 139 128 - 160
51 - 64 59 - 73 67 - 84 78 - 97 89 - 111 103 - 128
D
38 - 51 44 - 59 51 - 67 58 - 78 67 - 89 77 - 103
I/A I/A A A A A
25 - 31 29 - 36 33 - 41 38 - 48 44 - 55 50 - 63
20 - 25 23 - 29 26 - 33 30 - 38 35 - 44 40 - 50
E
15 - 20 17 - 23 20 - 26 23 - 30 26 - 35 30 - 40
I/A I/A I/A A A A
16 - 20 19 - 23 21 - 27 25 - 31 28 - 36 33 - 41
13 - 16 15 - 19 17 - 21 20 - 25 23 - 28 26 - 33
F
10 - 13 11 - 15 13 - 17 15 - 20 17 - 23 20 - 26
I/A I/A I/A I/A A A
13 - 16 14 - 18 17 - 21 19 - 24 22 - 27 25 - 31
10 - 13 12 - 14 13 - 17 15 - 19 17 - 22 20 - 25
G
8 - 10 9 - 12 10 - 13 11 - 15 13 - 17 15 - 20
C/I/A I/A I/A I/A I/A A
6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25
5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20
H
4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16
C C/I I I/A I/A I/A
6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12
4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10
O
F
F
E
N
S
E

C
L
A
S
S

I
3 - 4 3 - 4 4 - 5 4 - 6 5 - 7 6 - 8

A Active Punishment I Intermediate Punishment C Community Punishment

Numbers shown are in months and represent the range of minimum sentences

Revised: 08-11-11

MINIMUM AND MAXIMUM SENTENCES
The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the
number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash
represents the corresponding maximum sentence (in months).

__________________FOR OFFENSE CLASSES B1 THROUGH E_________________
15-30 52-75 89-119 126-164 163-208 200-252 237-297 274-341 311-386
16-32 53-76 90-120 127-165 164-209 201-254 238-298 275-342 312-387
17-33 54-77 91-122 128-166 165-210 202-255 239-299 276-344 313-388
18-34 55-78 92-123 129-167 166-212 203-256 240-300 277-345 314-389
19-35 56-80 93-124 130-168 167-213 204-257 241-302 278-346 315-390
20-36 57-81 94-125 131-170 168-214 205-258 242-303 279-347 316-392
21-38 58-82 95-126 132-171 169-215 206-260 243-304 280-348 317-393
22-39 59-83 96-128 133-172 170-216 207-261 244-305 281-350 318-394
23-40 60-84 97-129 134-173 171-218 208-262 245-306 282-351 319-395
24-41 61-86 98-130 135-174 172-219 209-263 246-308 283-352 320-396
25-42 62-87 99-131 136-176 173-220 210-264 247-309 284-353 321-398
26-44 63-88 100-132 137-177 174-221 211-266 248-310 285-354 322-399
27-45 64-89 101-134 138-178 175-222 212-267 249-311 286-356 323-400
28-46 65-90 102-135 139-179 176-224 213-268 250-312 287-357 324-401
29-47 66-91 103-136 140-180 177-225 214-269 251-314 288-358 325-402
30-48 67-93 104-137 141-182 178-226 215-270 252-315 289-359 326-404
31-50 68-94 105-138 142-183 179-227 216-271 253-316 290-360 327-405
32-51 69-95 106-140 143-184 180-228 217-273 254-317 291-362 328-406
33-52 70-96 107-141 144-185 181-230 218-274 255-318 292-363 329-407
34-53 71-98 108-142 145-186 182-231 219-275 256-320 293-364 330-408
35-54 72-99 109-143 146-188 183-232 220-276 257-321 294-365 331-410
36-56 73-100 110-144 147-189 184-233 221-278 258-322 295-366 332-411
37-57 74-101 111-146 148-190 185-234 222-279 259-323 296-368 333-412
38-58 75-102 112-147 149-191 186-236 223-280 260-324 297-369 334-413
39-59 76-104 113-148 150-192 187-237 224-281 261-326 298-370 335-414
40-60 77-105 114-149 151-194 188-238 225-282 262-327 299-371 336-416
41-62 78-106 115-150 152-195 189-239 226-284 263-328 300-372 337-417
42-63 79-107 116-152 153-196 190-240 227-285 264-329 301-374 338-418
43-64 80-108 117-153 154-197 191-242 228-286 265-330 302-375 339-419
44-65 81-110 118-154 155-198 192-243 229-287 266-332 303-376
45-66 82-111 119-155 156-200 193-244 230-288 267-333 304-377
46-68 83-112 120-156 157-201 194-245 231-290 268-334 305-378
47-69 84-113 121-158 158-202 195-246 232-291 269-335 306-380
48-70 85-114 122-159 159-203 196-248 233-292 270-336 307-381
49-71 86-115 123-160 160-204 197-249 234-293 271-338 308-382
50-72 87-117 124-161 161-206 198-250 235-294 272-339 309-383
51-74 88-118 125-162 162-207 199-251 236-296 273-340 310-384
To calculate a maximum sentence when the minimum sentence is 340 months or more, multiply the minimum
sentence by 1.2 (i.e., 120%), round to the next highest month, and add 12. See G.S. 15A-1340.17(e1).
Sex Offenses: To calculate a maximum sentence for a Class B1 through E felony that is subject to the registration
requirements of G.S. Chapter 14, Article 27A, multiply the minimum sentence by 1.2 (i.e., 120%), round to the
next highest month, and add 60. See G.S. 15A-1340.17(f).

_________________FOR OFFENSE CLASSES F THROUGH I_________________
3-13 8-19 13-25 18-31 23-37 28-43 33-49 38-55
4-14 9-20 14-26 19-32 24-38 29-44 34-50 39-56
5-15 10-21 15-27 20-33 25-39 30-45 35-51 40-57
6-17 11-23 16-29 21-35 26-41 31-47 36-53 41-59
7-18 12-24 17-30 22-36 27-42 32-48 37-54

File No.
SUBTOTAL
X 1
FACTORS
X10
X 9
X 4
X 2
Defendant's Current Charge(s):
NUMBER POINTS TYPE
Prior Felony Class A Conviction
Prior Felony Class B1 Conviction
Prior Felony Class B2 or C or D Conviction
Prior Felony Class E or F or G Conviction
Prior Felony Class H or I Conviction
Prior Class A1 or 1 Misdemeanor Conviction (see note on reverse)
I. SCORING PRIOR RECORD/FELONY SENTENCING
(Over)
District
In The General Court Of Justice
County
Superior Court Division
STATE VERSUS
Name And Address Of Defendant
SID No. Social Security No.
Race Sex DOB
G.S. 15A-1340.14, 15A-1340.21
AOC-CR-600B, Rev. 6/12

2012 Administrative Office of the Courts
FELONY
NOTE: If sentencing for a misdemeanor, total the number of prior
conviction(s) listed on the reverse and select the corresponding prior
conviction level.
PRIOR
CONVICTION
LEVEL
MISDEMEANOR
II. CLASSIFYING PRIOR RECORD/CONVICTION LEVEL
The Court has determined the number of prior convictions
to be
In making this determination, the Court has relied upon the
State's evidence of the defendant's prior convictions from a
computer printout of DCI-CCH.
In making this determination, the Court has relied upon the State's
evidence of the defendant's prior convictions from a computer
printout of DCI-CCH.
The Court finds the prior convictions, prior record points and the
prior record level of the defendant to be as shown herein.
In finding a prior record level point under G.S. 15A-1340.14(b)(7),
the Court has relied on the jury's determination of this issue beyond
a reasonable doubt or the defendant's admission to this issue.
NOTE: If sentencing for a felony, locate the prior record level which
corresponds to the total points determined in Section I above.
No. Of Prior
Convictions
Level
PRIOR
RECORD
LEVEL
0
1 - 4
5+
I
II
III
and the level to be as shown above.
Points
0 - 1
2 - 5
6 - 9
10 - 13
14 - 17
18+
Level
I
II
III
IV
V
VI
The Court finds that the State and the defendant have stipulated in open court to the prior convictions, points and record level.
Date Name Of Presiding Judge (Type Or Print) Signature Of Presiding Judge
For each out-of-state conviction listed in Section V on the reverse, the Court finds by a preponderance of the evidence that the offense is substantially similar
to a North Carolina offense and that the North Carolina classification assigned to this offense in Section V is correct.
The Court finds that all of the elements of the present offense are included in a prior offense.
WORKSHEET PRIOR RECORD
LEVEL FOR FELONY SENTENCING
AND PRIOR CONVICTION LEVEL
FOR MISDEMEANOR SENTENCING
(STRUCTURED SENTENCING)
(For Offenses Committed On Or After Dec. 1, 2009)
TOTAL
If the offense was committed while the offender was:
If all the elements of the present offense are included in any prior offense whether or not the prior offenses
were used in determining prior record level.
+ 1
+ 1
on supervised or unsupervised probation, parole, or post-release supervision;
serving a sentence of imprisonment; or on escape from a correctional institution.
County File No. State (if other than NC)
X 6
Name Of Prosecutor (Type Or Print) Date Signature Of Prosecutor
The defendant is NOT required to provide a DNA sample for this conviction because (i) the offense is not covered by
G.S. 15A-266.4 or (ii) a sample of the defendant's DNA has previously been obtained and the defendant's DNA record is currently
stored in the State DNA database.
The defendant IS required to provide a DNA sample for this conviction because (i) the offense is covered by G.S. 15A-266.4 and (ii)
a sample of the defendant's DNA has not previously been obtained and the defendant's DNA record has not previously been stored
in the State DNA Database, or if previously obtained and stored, the defendant's DNA sample and record have been expunged.
1.
2.
A review of the case record (the form required by G.S. 15A-266.3A(c)) and the records of the State Bureau of Investigation (the DCI-CCH
rap sheet) indicates that (check one):
IV. DNA CERTIFICATION
V. PRIOR CONVICTION
NOTE: Federal law precludes making computer printout of DCI-CCH (rap sheet) part of permanent public court record.
NOTE: The only misdemeanor offenses under Chapter 20 that are assigned points for determining prior record level for felony sentencing are
misdemeanor death by vehicle [G.S. 20-141.4(a2)] and, for sentencing for felony offenses committed on or after December 1, 1997, impaired driving [G.S.
20-138.1] and commercial impaired driving [G.S. 20-138.2]. First Degree Rape and First Degree Sexual Offense convictions prior to October 1, 1994, are
Class B1 convictions.
Source
Code
Offenses File No.
Date Of
Conviction
County
(Name of State if not NC)
Class
Source Code:
1 - DCI
2 - NCIC
3 - AOC/Local
4 - AOC/Statewide
5 - ID Bureau
6 - Other
Date Prepared:
Prepared By:
AOC-CR-600B, Side Two, Rev. 6/12
The prosecutor and defense counsel, or the defendant, if not represented by counsel, stipulate to the information set out in Sections I
and V of this form, and agree with the defendant's prior record level or prior conviction level as set out in Section II based on the
information herein.
Signature Of Prosecutor Date Signature Of Defense Counsel Or Defendant Date
III. STIPULATION
See AOC-CR-600 Continuation for additional prior convictions.
(For Offenses Committed On Or After Feb. 1, 2011)
SEXUALLY VIOLENT OFFENSES (14-208.6(5))
First-degree rape (14-27.2) O
Rape of a child by an adult offender (14-27.2A) O
Second-degree rape (14-27.3) O
First-degree sexual offense (14-27.4) O
Sexual offense with a child by an adult offender (14-27.4A) O
Second-degree sexual offense (14-27.5) O
Sexual battery (14-27.5A) O
Attempted rape/sexual offense (14-27.6) O
Intercourse/sexual offense w/ certain victims (14-27.7) O
Statutory rape (13-15 y.o. & D 6+ yrs.older) (14-27.7A(a))O
Sexual Servitude (14-43.13) O
Incest between near relatives (14-178) O
Employ minor in offense/public morality (14-190.6) O
Felony indecent exposure (14-190.9(a1)) O
First-degree sexual exploitation of minor (14-190.16) O
Second-degree sexual exploitation of minor (14-190.17) O
Third-degree sexual exploitation of minor (14-190.17A) O
Promoting prostitution of minor (14-190.18) O
Participating in prostitution of minor (14-190.19) O
Taking indecent liberties with children (14-202.1) O
Solicitation of child by computer (14-202.3) O
Taking indecent liberties with a student (14-202.4(a)) O
Parent/caretaker prostitution (14-318.4(a1)) O
Parent/guardian commit/allow sexual act (14-318.4(a2))O

OFFENSES AGAINST A MINOR (14-208.6(1m))
Includes the following three crimes, only when the victim is a
minor [under age 18] and the offender is not the minors
parent [biological or adoptive parent, not stepparent,
State v. Stanley, 697 S.E.2d 389 (2010)]:
Kidnapping (14-39)O
Abduction of children (14-41)O
Felonious restraint (14-43.3)O

SECRETLY PEEPING (14-208.6(4)d.)
The following are reportable only if the court decides
registration furthers purposes of the registry (14-208.5) and
that offender is a danger to community:
Felony peeping under 14-202 (d), (e), (f), (g), or (h) O; or
Second/subsequent conviction of:
Misd. peeping under 14-202(a) or (c) O
Misd. peeping w/ mirror/device under 14-202(a1) G
Note: Inchoate & aiding/abet peeping are not reportable.
ATTEMPTS, CONSPIRACIES, SOLICITATIONS, & AID/ABETTING
Attempt: Final convictions for attempts to commit an offense
against a minor or a sexually violent offense are reportable.
14-208.6(4)a. At a minimum, applies to offenses committed
on/after April 1, 1998 (unless target offense has a later date).
S.L. 1997-516.
Conspiracy/Solicitation: Conspiracy and solicitation to commit an
offense against a minor or a sexually violent offense are
reportable. 14-208.6(1m); -208.6(5). Applies to offenses
committed on/after Dec. 1, 1999 (unless target offense has later
date). S.L. 1999-363.
Aiding & Abetting: Aiding and abetting an offense against a
minor or sexually violent offense is reportable only if the court
finds that registration furthers the purposes of the registry (set
out in 14-208.5). 14-208.6(4)a. Applies to offenses committed on
or after December 1, 1999 (unless the underlying offense has a
later date). S.L. 1999-363.

FEDERAL CONVICTIONS (including court-martial) (14-208.6(4)c.)
Offenses substantially similar to a North Carolina offense against
a minor or sexually violent offense (includes conspiracy,
solicitation, and aiding/abetting; excludes attempts) O

CONVICTIONS FROM ANOTHER STATE (14-208.6(4)b.)
1. Offenses substantially similar to NC offense against a minor or
sexually violent offense (includes conspiracy, solicitation, and
aid/abetting; excludes attempts) (use effective date of similar NC
offense); or
2. Any offense that requires registration in the state of conviction
(applies to offenders who moved to NC on/after Dec. 1, 2006;
and to offenders who moved to NC before Dec. 1, 2006 if they
serve active time, are on probation/parole/PRS, are reqd to
register in NC for another offense, or are convicted of any felony
on/after Oct. 1, 2010. S.L. 2010-174).
KEY FOR EFFECTIVE DATE CRITERIA:
O Convicted/released from prison on/after Jan. 1, 1996. S.L. 1995-545
O Committed on/after Dec. 1, 2005. S.L. 2005-226; -121; -130
O Committed on/after Dec. 1, 2006. S.L. 2006-247
O Convicted /released on/after Dec. 1, 2008. S.L. 2008-220
O Convicted /released on/after Dec. 1, 2009. S.L. 2009-498
O Committed on/after Apr. 1, 1998 (at a minimum). S.L. 1997-516
O Convicted/released on/after Apr. 3, 1997 (or use effective date of
similar NC offense if later). S.L. 1997-15
G Committed on/after Dec. 1, 2004. S.L. 2004-109
An offender with a reportable conviction must register for 30 years (reducible to 10 in some cases by petition under 14-
208.12A), unless lifetime registration applies. 14-208.7. Lifetime registration applies to recidivists; offenders convicted of an
aggravated offense; or sexually violent predators. 14-208.23. Because most of the case law related to those categories has
arisen in the context of satellite-based monitoring, they are described in greater detail on the reverse side of this sheet.
Reportable Convictions
Sex Offender Registration & Satellite-Based Monitoring (SBM) Jamie Markham, UNC School of Government June 2012

2
0
1
2

U
N
C

S
c
h
o
o
l

o
f

G
o
v
e
r
n
m
e
n
t
.

SBM. A satellite-based monitoring (SBM) determination
hearing must be held for a defendant with a reportable
conviction. See reverse for applicable procedures.
NO CONTACT ORDER. The DA may ask the court to issue a
permanent no contact order for any defendant convicted of
a reportable offense. 15A-1340.50. Use AOC-CR-620.
Satellite-Based Monitoring (SBM)
Effective date. SBM applies to offenders with a reportable conviction who: (1) Commit a reportable offense on/after Aug. 16, 2006; (2) are
sentenced to intermediate punishment on/after Aug. 16, 2006; (3) are released from prison by parole/post-release supervision on/after Aug.
16, 2006; or (4) complete a sentence on/after Aug. 16, 2006 and are not on PRS or parole. S.L.2006-247 15(l). SBM determinations should be
held at sentencing for defendants sentenced after December 1, 2007. G.S. 14-208.40A. S.L. 2007-484 42(b). Use AOC-CR-615.
1. SEXUALLY VIOLENT PREDATOR (SVP) (14-208.6(6)). A person convicted of a sexually violent offense who suffers from an abnormality or
disorder, as determined by the court after examination by an expert panel under 14-208.20.
The court cannot classify an offender as a SVP without following 14-208.20. State v. Zinkand, 190 N.C. App. 765 (2008).
2. RECIDIVIST (14-208.6(2b)). A person with a prior conviction for an offense described in 14-208.6(4).
A prior conviction need not itself be reportable to qualify a person as a recidivist. State v. Wooten, 194 N.C. App. 524 (2008).
At least one of the offenders convictions must be committed on/after Oct. 1, 2001. S.L. 2001-373.
3. COMMITTED AN AGGRAVATED OFFENSE (14-208.6(1a)). An aggravated offense is one that includes:
(1) Engaging in a sexual act involving vaginal, anal, or oral penetration;
(2) (a) With a victim of any age through the use of force or the threat of serious violence, or
(b) With a victim who is less than 12 years old.
Only offenses committed on/after Oct. 1, 2001 can be aggravated. S.L. 2001-373.
To determine whether an offense is aggravated, the court may only look at the elements of the conviction offense, not the underlying facts
of what might have happened in a particular case. State v. Davison, 689 S.E.2d 510 (2009).
AGGRAVATED: 1st-deg. stat. rape (victim under 13, 14-27.2(a)(1)). State v. Clark, 714 S.E.2d 754 (2011).
Stat. rape (victim 13, 14, 15/def. 6 yrs. older, 14-27.7A(a)). State v. Sprouse (Dec. 6, 2011).
2nd-deg. rape (forcible, 14-27.3(a)(1)). State v. McCravey, 692 S.E.2d 409 (2010).
2nd-deg. rape (mentally disabled victim, 14-27.3(a)(2)). State v. Oxendine, 696 S.E.2d 850 (2010).
NOT AGGRAVATED: Sexual offense by a substitute parent (14-27.7(a)). State v. Mann, 715 S.E.2d 213 (2011).
1st-deg. sex offense (victim under 13, 14-27.4(a)(1)). State v. Treadway, 702 S.E.2d 335 (2010).
Child abuse by sex act (14-318.4(a2)). State v. Phillips, 691 S.E.2d 104 (2010).
Indecent liberties with a child. State v. Singleton, 689 S.E.2d 562 (2010).
Sexual battery. State v. Brooks, 693 S.E.2d 204 (2010).
4. RAPE OR SEXUAL OFFENSE WITH MINOR BY ADULT (14-27.2A; -27.4A). A conviction for one of these crimes (created by
S.L. 2008-117, effective for offenses committed on/after Dec. 1, 2008) requires lifetime SBM.

If the court finds that the defendant does not fit into any of the four lifetime categories set out above, it must determine whether the
offender committed an offense that involved the physical, mental, or sexual abuse of a minor.14-208.40A(d).
The court first determines whether the defendant falls into one of the four categories requiring lifetime SBM. If the defendant falls into the
one of the categories set out below, the court must order SBM for life. 14-208.40A(c).
Physical, mental, or sexual abuse of a minor is undefined. The following have been ruled abuse of a minor: Indecent liberties, State v. Jarvis,
715 S.E.2d 252 (2011); Solicitation to commit ind. liberties, State v. Cowan, 700 S.E.2d 239 (2010); 1st deg. sexual offense, State v. Carter, 718
S.E.2d 687 (2011). Other crimes may also qualify.
If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, it must order DOC
to do a risk assessment (Static-99). DOC shall have 30-60 days to complete the assessment. Upon receipt of the assessment, the court
determines whether the offender requires the highest possible level of supervision and monitoring. If so, the court shall order SBM
enrollment for a period specified by the court in its discretion. 14-208.40A(d)-(e).
In determining whether an offender requires the highest possible level of supervision and monitoring, the court may consider any relevant
evidence and is not limited to the risk assessment. State v. Morrow, 200 N.C. App. 123, affd, 364 N.C. 424 (2010); see State v. Green, 710
S.E.2d 292 (2011) (approving SBM for a defendant with a MODERATE-LOW Static-99 score when the court made additional findings that the
victims were especially young and the defendant failed to complete treatment); State v. Jarvis, 715 S.E.2d 252 (2011) (approving of the trial
courts findings that the defendant took advantage of a position of trust and the victims vulnerability, but disapproving of a finding that the
defendants Alford plea signaled a lack of remorse).
The court should order a discrete time for SBM (e.g. 3 yrs.), not a range (7-10 yrs.). State v. Morrow, 200 N.C. App. 123 (2009).
The trial court may not order lifetime SBM for a defendant in this category. State v. Cowan, 700 S.E.2d 239 (2010).
Bring-back hearings. If no SBM determination is made at sentencing, DAC makes an initial determination as to whether SBM applies and
notifies the offender. The notice must state the expected SBM eligibility category and a brief statement of the factual basis for that
determination. State v. Stines, 200 N.C. App. 193 (2009). Despite SBM being civil, DAC is not reqd to file a civil complaint/summons for the
hearing. State v. Self, 720 S.E.2d 776. The DA schedules a superior court hearing in county of residence (15 days notice reqd). Indigent
offenders are entitled to counsel. 14-208.40B. Use AOC-CR-616.
Constitutional issues. SBM is civil in nature and thus does not violate the Ex Post Facto Clause, State v. Bowditch, 364 N.C. 335 (2010); double
jeopardy, State v. Wagoner, 364 N.C. 422 (2010); or Apprendi/Blakely, State v. Hagerman, 364 N.C. 423 (2010). SBM does not infringe on a
defendants right to interstate travel. State v. Manning, __ N.C. App. __ (June 5, 2012).
Appeals. Because SBM is civil in nature, defendants must note their appeal of an SBM determination in writing pursuant to Rule 3(a) of the
N.C. Rules of Appellate Procedure; oral notice is insufficient. State v. Brooks, 693 S.E.2d 204 (2010).
Justice Reinvestment Essentials (S.L. 2011-192, as amended)
Felony maximum sentences
increased; all felons get
post-release supervision
Ofenses committed on or after
December 1, 2011
ClassB1Efelonies:12-monthPRS(maximumis120%ofminimum+12months)
ClassFIfelonies:9-monthPRS(maximumis120%ofminimum+9months)
Sexofenders:PRSsupervised releaseperiodis5years.ForClassB1Efeloniesrequiring
registration,themaximumsentenceis120%oftheminimum+60months.S.L.2011-307
Drugtrafckingofenseson/afterDec.1,2012receivePRS.S.L.2012-188
New Advanced Supervised Release
(ASR) program created
Persons entering a plea or found guilty
on or after January 1, 2012
(NotethatforClassFIfelonies,
onlyofensescommittedonor
afterDecember1,2011,
receivepost-releasesupervision)
Iftheprosecutordoesnotobject,thesentencingjudgemay,whenimposinganactive
sentence,orderdefendantsinthefollowinggridcellsintotoDACsASRprogram:
ClassDfelonies,priorrecordlevelsIIII
ClassEfelonies,priorrecordlevelsIIV
ClassFfelonies,priorrecordlevelsIV
AllClassGandHfelonies
Defendantswhocompleteriskreductionincentivesinprison(orwhoareunabletodoso
throughnofaultoftheirown)getreleasedontoPRSontheirASRdate.TheASRdateisthe
lowestmin.sentenceinthemitigatedrangeforthedefendantsofenseandpriorrecord
level(or80%oftheimposedminimumifamitigated-rangesentence).G.S.15A-1340.18.
Intermediate punishment redefned
December 1, 2011
Asentencethatplacesadefendantonsupervisedprobationandmayincludedrug
treatmentcourt,specialprobation,orotherconditionsofprobation,includingthe
communityandintermediateconditionssetoutbelow.G.S.15A-1340.11(6).
Community punishment redefned
December 1, 2011
Asentencetosupervisedorunsupervisedprobationorafnethatdoesnotincludean
activepunishment,drugtreatmentcourt,orspecialprobation.Thesentencemayinclude
anyofthecommunityandintermediateconditionsdescribedbelow.G.S.15A-1340.11(2).
New set of community and
intermediate probation conditions
December 1, 2011 (unlessotherwise
indicated)
(doesnotapplytoDWI)
Thefollowingconditionsmaybeorderedinanycase,communityorintermediate:
Communityservice,andpaythefeeprescribedbylaw
Jailconfnementfor23days,fornomorethan6dayspermonth,duringany3separate
monthsofaprobationperiod.Ifthedefendantisonprobationformultiplejudgments,
confnementperiodsmustrunconcurrentlyandmaytotalnomorethan6days/month
Substanceabuseassessment,monitoring,ortreatment
Abstainfromalcoholandsubmittocontinuousalcoholmonitoring(CAM)ifdependency
orabuseidentifedbyasubstanceabuseassessment(ofenseson/after12/1/12)
Participationinaneducationalorvocationalskillsdevelopmentprogram
Submissiontosatellite-basedmonitoring(ifacoveredsexofender).G.S.15A-1343(a1)
Intermediate punishments repealed
December 1, 2011
Intensivesupervision
Residentialprogram
Dayreportingcenter
Delegated authority expanded
December 1, 2011
(doesnotapplytoDWI)
Unlessthejudgefndsthatdelegationisnotappropriate,aprobationofcercanadd
thefollowingconditionsinresponsetoaprobationersfailuretocomplywith1ormore
conditionsimposedbythecourtoriftheprobationerishighrisk(SupervisionLevel1or2):
Performupto20hoursofcommunityservice(50hoursinintermediatecases)
Submittoanelectronicallymonitoredcurfew
Submittosubstanceabuseassessment,monitoring,ortreatment
CAM,ifalcoholabstinenceisacondition(intermediateonly,ofenseson/after12/1/12)
Participateinaneducationalorvocationalskillsdevelopmentprogram
Reporttotheprobationofceratafrequencydeterminedbytheofcer
Submittosatellite-basedmonitoringifacoveredsexofender(intermediateonly)
Inresponsetoadefendantsfailuretocomplywithoneormoreconditionsimposedbythe
court(notbasedonrisklevelalone),theprobationofcermay,iftheprobationerwaives
therighttoahearingandalawyer,requirejailconfnementfor23days,fornomorethan
6dayspermonth,duringany3separatemonths.G.S.15A-1343.2.
ThisprojectwassupportedbyGrantNo.2010-RR-BX-K071awardedbytheBureauofJusticeAssistance.TheBureauofJusticeAssistanceisacomponent
oftheOfceofJusticePrograms,whichalsoincludestheBureauofJusticeStatistics,theNationalInstituteofJustice,theOfceofJuvenileJusticeand
DelinquencyPrevention,theSMARTOfce,andtheOfceforVictimsofCrime.Pointsofvieworopinionsinthisdocumentarethoseoftheauthoranddo
notrepresenttheofcialpositionorpoliciesoftheUnitedStatesDepartmentofJustice.2012UNCSchoolofGovernment(preparedbyJamesMarkham)
(over)
Statutory absconding condition
December 1, 2011
Itisaregularconditionofprobationthatadefendantnotabscond,bywillfullyavoiding
supervisionorbywillfullymakingthedefendantswhereaboutsunknowntothe
supervisingprobationofcer.G.S.15A-1343(b)(3a).
Revocation authority limited
Probation violations occurring on or
after December 1, 2011
(allprobationcases,includingDWI)
UnderG.S.15A-1344(a)and-1344(d2),thecourtmayrevokeprobationonlyfor:
Violationsofthecommitnocriminalofensecondition
Violationsofthenewstatutoryabscondingcondition
DefendantswhohavepreviouslyreceivedtwoCRVperiodsinthecase.
Note:TheParoleCommissionsauthoritytorevokePRSissimilarlylimited.G.S.15A-1368.3.
New Confnement in Response
to Violation (CRV) authorized
Probation violations occurring on or
after December 1, 2011
(allprobationcases,includingDWI)
Inresponsetoprobationviolationsotherthananewcriminalofenseorabsconding,the
courtmayimposeconfnementof90 days for a felonyorup to 90 days for a misdemeanor.
Felonies:Iftimeremainingonthedefendantssentenceis90daysorless,thenCRVisfor
theremainderofthesentence(after7/16/12,notapplicabletomisdemeanors)
AdefendantmayreceiveonlytwoCRVperiodsinaparticularcase
JailcreditfortimespentawaitingaviolationhearingmustbeappliedtoanyCRVordered
CRVperiodsmustrunconcurrentlywithoneanother
CRVconfnementisimmediateunlessotherwisespecifedbythecourt
CRVisservedwheredefendantwouldhaveservedanactivesentence.G.S.15A-1344(d2)
G.S. 90-96 conditional discharge
amended, made mandatory
Persons entering a plea or found guilty
on or after January 1, 2012
Whenanyeligibledefendantwhopleadsguiltytoorisfoundguiltyof:
Misdemeanorpossessionofacontrolledsubstance(anyscheduleoramount);
PossessionofdrugparaphernaliaunderG.S.90-113.22;or
FelonydrugpossessionunderG.S.90-95(a)(3)(anyscheduleoramount)
Thecourtshall(was,may),withtheconsentofthedefendant,placethedefendant
onprobationwithoutenteringjudgmentunderG.S.90-96(a).Aneligibledefendantis
anypersonwhohasnotpreviouslybeenconvictedofanyfelony,anyofenseunderthe
ControlledSubstancesAct,oranystate/federalcontrolledsubstance/paraphernaliaofense.
G.S.90-96(a1)providesforadiscretionarydischargeanddismissalofthesameofenses
listedinsubsection(a)forfrst-timeofenders(7-yearlook-backforpriorofenses).
Habitual felon a 4-class
enhancement
Principal felonies occurring on or after
December 1, 2011
ClassIClassE
ClassHClassD
AllotherfeloniesClassC
G.S.14-7.6.
Habitual breaking and entering
status ofense created
Principal felonies occurring on or after
December 1, 2011
Defendantchargedwithfelonybreakingandentering(listedofenses)whohas1ormore
priorB/Econvictions(listedofenses)can,inDAsdiscretion,bechargedashabitualB/E
statusofenderand,ifconvicted,sentencedasaClass E felon:
1st/2nddeg.burglary(G.S.14-51);breakingoutofdwellinghouseburglary(G.S.14-53)
Felonybreaking/enteringbldgs.(G.S.14-54(a));B/Eplaceofworship(G.S.14-54.1)
Anyrepealed,supersededofensesubstantiallysimilartotheofensesabove
Anyofensefromanotherjurisdictionsubstantiallysimilartotheofensesabove
AsecondB/Eofenseonlyqualifesifcommittedafterconvictionofthefrstofense.
Theprincipalofensemustoccurafterthedefendantturns18
Convictionusedtoestablishhabitualstatusdoesntcounttowardpriorrecordlevel
HabitualB/Esentencesmustrunconsecutivelytoanysentencebeingserved
G.S.14-7.25through-7.31.
Changes to proper place of
confnement
Sentences imposed on or after
January 1, 2012
Misdemeanors:
90daysorless:LocaljailexceptasprovidedinG.S.148-32.1(b)
91180days(exceptforDWI):StatewideMisdemeanantConfnementProgram(MCP),
throughwhichplaceofconfnementwillbedeterminedbytheN.C.SherifsAssn
Sentenceorsentencestotaling181daysormore:ToDAC
Felons:DAC.G.S.15A-1352;148-32.1.
Note:Diferentrulesapplyforsplitsentences(G.S.15A-1351(a))andDWI(G.S.20-176(c1)).
ThisprojectwassupportedbyGrantNo.2010-RR-BX-K071awardedbytheBureauofJusticeAssistance.TheBureauofJusticeAssistanceisacomponent
oftheOfceofJusticePrograms,whichalsoincludestheBureauofJusticeStatistics,theNationalInstituteofJustice,theOfceofJuvenileJusticeand
DelinquencyPrevention,theSMARTOfce,andtheOfceforVictimsofCrime.Pointsofvieworopinionsinthisdocumentarethoseoftheauthoranddo
notrepresenttheofcialpositionorpoliciesoftheUnitedStatesDepartmentofJustice.2012UNCSchoolofGovernment(preparedbyJamesMarkham)
VOIRDIRE
1
Jury Selection (or Jury De-selection) (6-29-11)
Michael G. Howell
Capital Defenders Office
123 West Main Street, Ste. 601, Durham, NC 27701
(919) 354-7220

Purpose of J ury De-selection: IDENTIFY the worst jurors and REMOVE them.

Means for removal
1) Challenge for Cause 15A-1212The 3 most common grounds are:
(6) The juror has formed or expressed an opinion as to the guilt or innocence of
the defendant. (You may NOT ask what the opinion is.)

8) As a matter of conscience, regardless of the facts and circumstances, the
juror would be unable to render a verdict with respect to the charge in
accordance with the law of North Carolina.

(9) For any other cause, the juror is unable to render a fair and impartial
verdict.

2) Peremptory Challenges 15A-1217
Each defendant is allowed six (6) challenges (in non-capital cases).
Each party is entitled to one (1) peremptory challenge for each alternate
juror in addition to any unused challenges.

Law of J ury Selection
Statutes (read N.C.G.S. 15A-1211 to 1217)
Case law (See outline, Freedman and Howell, Jury Selection Questions, 25 pp.)
J ury instructions (applicable to your case)
Recordation (N.C.G.S. 15A-1241)

Two Main Methods of Jury Selection

1) Traditional Approach or Lecturer Method
Lecture technique (almost entirely) with leading or closed-ended questions
PurposesIndoctrinate jury about law and facts of your case, and establish lawyers
authority or credibility with jury
Commonly used by prosecutors (and some civil defense lawyers)
In the sermon or lecture, the lawyer does over 95% of the talking
ExampleCan everyone set aside what if any personal feelings you have about drugs
and follow the law and be a fair and impartial juror?
ProblemLearn very little (if anything) about jurors

2
2) The Listener Method of Jury Selection
PurposeLearn about the jurors experiences and beliefs (instead of trying to change
their beliefs)
The premisePersonal experiences shape jurors views and beliefs, and can help predict
how jurors will view facts, law, and each other.
Open-ended questions will get and keep jurors talking and reveal information about
J urors life experiences,
Attitudes, opinions, and views, and
Interpersonal relations with each other and their communication styles
Information will allow attorney to achieve GOAL of jury selection
Identify the worst jurors for your case, and
Remove them (for cause or by peremptory strike)
Basically, a conversation with lawyer doing 10% of talking (the 90/10 rule)

Quote from life-long Anonymous public defenderI used to think that jury selection
was my chance to educate the jurors about the law or the facts of my case. Now, I
realize that jury selection is about the jurors educating me about themselves.

Default positions
Lecturer Can you follow the law and be fair and impartial?
ListenerPlease tell me more about that

Command Superlative Analogue Technique (New Mexico Public Defenders)
Effective technique within Listener Method
Ask about significant or memorable life experiences
It will trigger a conversation about jurors life experiences and views
Three Elements of Command Superlative Analogue Technique
1) Ask about a personal experience relating to the issue, or an experience of a
family member or someone close to the juror [analogue]
2) Add superlative adjective (best, worst, etc.) to help them recall [superlative]
3) Put question in command form (i.e., Tell us about) [command]
ExampleTell me about your closest relationship with a person who has been affected
by illegal drugs.
CautionTime consumingCannot use it for everythingSave it for the key issues
(*For sample questions, see Mickenberg, Voir Dire and Jury Selection, pp. 11-13; Trial
School Workshop Aids, pp. 5-7).

Listener Method in Practice

Preparation
Know the case and lawDevelop theory and theme
Pick the pertinent issues or areas (in that case) that you want jurors to talk about
Cannot do the same voir dire in every caseIt varies with the theory of each case
Outline your questions (or offensive plays) for each area
-Superlative memory technique and follow-up (for 3-4 key topics)
3
-Open-ended questions for each area or topic
-Introductions (*see below)
-Standard group questions (that may lead to open-ended, individual follow-up)
-Key legal concepts (for the most important issues)

*Introductionsto jury selection overalland to each issue or topic
It makes the issue relevant
It puts jurors at ease and increases their chances of talking to you
Introductions need to be concise, straightforward, and honest
ExampleJoe is charged in this case with selling cocaine. For decades, illegal
drugs have been a problem for our society. Because of that, many of us
have strong feelings about people who use and sell illegal drugs. I want
to talk to you all about that.
For motor-mouthsif you have to talk, do it hereAt least it serves a purpose.

J ury selection playbook
Questions
Statutes and pertinent jury instructions
Case law outline and copies of key cases
Blank seating chart

Three (3) Rules for the Courtroom

1) Always use PLAIN LANGUAGE
Never talk like a lawyerBe your pre-lawyer self
Talking to communicate with average folksnot to impress with vocabulary

2) Get the jurors talkingand keep them talking
Superlative memory questions (for the key issues)
Open-ended questions (who, what, how, why, where, when)
Give up controllet jurors go wherever they want
Follow the 90/10 rulea conversation with lawyer doing 10% of talking
Be empathetic and respectfulencourage them to tell you more
Do NOT argue with, bully, or cross-examine a juror

The superlative memory technique exampleTell me about
your closest relationship with a person who has been affected by illegal
drugs.
Open-ended examplesWhat are your views about illegal drugs? Why do you
feel that way? What are your experiences with folks who use or sell
drugs? How have you or anyone close to you been affected by people who
use or sell drugs?

3) Catch every responseBoth verbal and non-verbal
Must LISTEN to every wordand WATCH every gesture or expression
Essential to catch every response to follow-up and keep them talking
4
Do NOT ignore a juror or cut off an answer
Use reflective questions in follow-up (Some people believe x and others
believe yWhat do you think?)

Decision-Making Time
Assess the answers and the jurorsDecide what to do..?
NEVER make decision based on stereotypes or demographics
ALWAYS judge a juror based on individual responses

Challenge for causeThe decision whether to challenge is easy
Do you immediately challenge or search for other areas of bias (?)
The hard part is executing a challenge for cause
See handouts, Jury Selection: Challenges for Cause (7-11-10) and Mickenberg,
Voir Dire and Jury Selection, pp. 13-15)

Peremptory challenges...rank the severity of bad jurors with 6 strikes in mind
Severity issueWymore Method for capital cases uses a rating system
Need to use your limited number of strikes wisely

1
JURY SELECTION QUESTIONS
Michael G. Howell, Stephen C. Freedman, and Lisa Miles
(919) 354-7220
(Feb. 14, 2012)

General Principles and Procedure (p. 1)

Procedural Rules of Voir Dire (pp. 2-3)

Permissible Substantive Areas of Inquiry (pp. 3-9)

Improper Questions or Improper Purposes (pp. 9-15)

Death Penalty Cases (pp. 15-30)

List of Cases (pp. 30-32)

I. GENERAL PURPOSE OF VOIR DIRE

Voir dire examination serves the dual purpose of enabling the court to select an
impartial jury and assisting counsel in exercising peremptory challenges. MuMin v
Virginia, 500 U.S. 415, 431 (1991). The N.C. Supreme Court explained that a similar
dual purpose was to ascertain whether grounds exist for cause challenges and to
enable the lawyers to intelligently exercise their peremptory challenges. State v.
Simpson, 341 N.C. 316, 462 SE2d 191, 202 (1995).

A defendant is not entitled to any particular juror. His right to challenge is not a
right to select but to reject a juror. State v. Harris, 338 N.C. 211, 227 (1994).

The purpose of voir dire and the exercise of challenges is to eliminate extremes
of partiality and to assure both[parties]that the persons chosen to decide the guilt or
innocence of the accused will reach that decision solely upon the evidence produced at
trial. State v. Conner, 335 N.C. 618, 440 S.E.2d 826, 832 (1994).

J urors, like all of us, have natural inclinations and favorites, and they sometimes,
at least on a subconscious level, give the benefit of the doubt to their favorites. So jury
selection, in a real sense, is an opportunity for counsel to see if there is anything in a
jurors yesterday or today that would make it difficult for that juror to view the facts, not
in an abstract sense, but in a particular case, dispassionately. State v Hedgepath, 66 N.C.
App. 390 (1984).

2
Where an adversary wishes to exclude a juror because of bias, it is the
adversary seeking exclusion who must demonstrate, through questioning, that the
potential juror lacks impartiality. Wainwright v. Witt, 469 U.S. at 423 (1985).

II. PROCEDURAL RULES OF VOIR DIRE

Overall: The trial court has the duty to control and supervise the examination of
prospective jurors. Regulation of the extent and manner of questioning during voir dire
rests largely in the trial courts discretion. Simpson, 341 N.C. 316, 462 S.E.2d 191, 202
(1995).

Group v. Individual Questions: The prosecutor and thedefendantmay personally
question prospective jurors individually concerning their competency to serve as
jurors. NCGS 15A-1214(c).

The trial judge has the discretion to limit individual questioning and require that
certain general questions be submitted to the panel as a whole in an effort to expedite jury
selection. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980).

Same or Similar Questions: The defendant may not be prohibited from asking a
question merely because the court [or prosecutor] has previously asked the same or
similar question. N.C.G.S. 15A-1214(c); State v. Conner, 335 N.C. 618, 440 S.E.2d 826,
832 (1994).

Leading Questions: Leading questions are permitted during jury voir dire [at least by
the prosecutor]. State v. Fletcher, 354 N.C. 455, 468, 555 S.E.2d 534, 542 (2001).

Re-Opening Voir Dire: N.C.G.S. 15A-1214(g) permits the trial judge to reopen the
examination of a prospective juror if, at any time before the jury has been impaneled, it is
discovered that the juror has made an incorrect statement or that some other good reason
exists. Whether to reopen the examination of a passed juror is within the judges
discretion. Once the trial court reopens the examination of a juror, each party has the
absolute right to use any remaining peremptory challenges to excuse such a juror. State
v. Womble, 343 N.C. 667, 678, 473 S.E.2d 291, 297 (1996). For example, in State v.
Wiley, 355 N.C. 592, 607-610 (2002), the prosecution passed a death qualified jury to
the defense. During defense questioning, a juror said that he would automatically vote
for LWOP over the death penalty. The trial judge re-opened the States questioning of
this juror and allowed the prosecutor to remove the juror for cause.

Preserving Denial of Challenges for Cause: In order to preserve the denial of a
challenge for cause for appeal, the defendant must adhere to the following procedure:
1) The defendant must have exhausted the peremptory challenges available to him;
2) After exhausting his peremptory challenges, the defendant must move (orally or in
writing) to renew a challenge for cause that was previously denied if he either:
a) Had peremptorily challenged the juror in question, or
3
b) Stated in the motion that he would have peremptorily challenged the juror if
he had not already exhausted his peremptory challenges; and
3) The judge denied the defendants motion for renewal of his cause challenge.
N.C.G.S 15A-1214(h) and (i).

Renewal of Requests for Disallowed Questions: Counsel may renew its requests to ask
questions that were previously denied. Occasionally, a trial court may change its mind.
See, State v. Polke, 361 N.C. 65, 68-69 (2006); State v. Green, 336 N.C. 142, 164-65
(1994).

III. SUBSTANTIVE AREAS OF INQUIRY

Accomplice Liability: Prosecutor properly asked about jurors abilities to follow the law
regarding acting in concert, aiding and abetting, and the felony murder rule by the
following non-stake-out questions in State v. Cheek, 351 N.C. 48, 65-68, 520 S.E.2d
545, 555-557 (1999):
[I]f you were convinced, beyond a reasonable doubt, of the defendants guilt,
even though he didnt actually pull the trigger or strike the match or strike the blow in
the murder, but that he was guilty of aiding and abetting and shared the intent that the
victim be killedcould you return a verdict of guilty on that?
[T]he fact that one person may not have actually struck the blow or pulled the
trigger or lit the match, but yet he could be guilty under the felony murder rule if he was
jointly acting together with someone else in the kidnapping or committing an armed
robbery?
[C]ould you follow the lawunder the felony murder rule and find someone
guilty of first-degree murder, if you were convinced, beyond a reasonable doubt, that they
had engaged in the underlying felony of either kidnapping or armed robbery, and find
them guilty, even though they didnt actually strike the blow or pull the trigger or light
the matchthat caused [the victims] death?

Accomplice/Co-Defendant (or Interested Witness) Testimony:
It is proper to ask about prospective jurors abilities to follow the law with respect
to interested witness testimonyWhen an accomplice is testifying for the State, the
accomplice is considered an interested witness, and his testimony is subject to careful [or
the highest of] scrutiny. State v. J ones, 347 N.C. 193, 201-204 (1997). See, NCPI-Crim.
104.21, 104.25 and 104.30.

The following were proper questions (asked by the prosecutor) about a co-
defendant/accomplice with a plea arrangement from State v. J ones, 347 N.C. 193,
201-202, 491 S.E.2d 641, 646 (1997):
a) There may be a witness who will testifypursuant to a plea arrangement, plea
bargain, or deal with the State. Would the mere fact that there is a plea
bargain with one of the States witnesses affect your decision or your verdict in
this case?

4
b) Could you listen to the courts instructions of how you are to view accomplice
or interested witness testimony, whether it came from the State or the
defendant.?

c) After having listened to that testimony and the courts instructions as to what
the law is, and you found that testimony believable, could you give it the same
weight as you would any other uninterested witness?

[According to the N.C. Supreme Court, these 3 questions were proper and not stake-out
questionsThey were designed to determine if jurors could follow the law and be impartial and unbiased.
J ones, 347 N.C. at 204. The prosecutor accurately stated the law. An accomplice testifying for the State is
considered an interested witness and his testimony is subject to careful scrutiny. The jury should analyze
such testimony in light of the accomplices interest in the outcome of the case. If the jury believes the
witness, it should give his testimony the same weight as any other credible witness. J ones, 347 N.C. at
203-204.]

You may hear testimony from a witness who is testifying pursuant to a plea agreement.
This witness has pled guilty to a lesser degree of murder in exchange for their promise to
give truthful testimony in this case. Do you have opinions about plea agreements that
would make it difficult or impossible for you to believe the testimony of a witness who
might testify under a plea agreement? The prosecutors inquiry merely (and properly)
sought to determine whether a plea agreement would have a negative effect on
prospective jurors ability to believe testimony from such witnesses. State v. Gell, 351
N.C. 192, 200-01 (2000).

Age of Juror and Effects of It: N.C.G.S. 9-6.1 allows jurors age 72 years or older to
request excusal or deferral from jury service but it does not prohibit such jurors from
serving. In State v. Elliott, 360 N.C. 400, 408 (2006), the Court recognized that it is
sensible for trial judges to consider the effects of age on the individual juror since the
adverse effects of growing old do not strike all equally or at the same time. [Based on
this, it appears that the trial court and the parties should be able to inquire into the effects
of aging with older jurors.]

Circumstantial Evidence/Lack of Eyewitnesses:
Prosecutor informed prospective jurors that only the three people charged with
the crimes know what happened to the victimsandnone of the three would testify
against the others and therefore the State had no eyewitness testimony to offer. He then
asked: Knowing that this is a serious case, a first degree murder case, do you feel like
you have to say to yourself, well, the case is just too seriousto decide based upon
circumstantial evidence and I would require more than circumstantial evidence to return
a verdict of first degree murder? The court found that these statements properly (1)
informed the jury that the state would be relying on circumstantial evidence and (2)
inquired as to whether the lack of eyewitnesses would cause them problems. (Also, it was
not a stake-out question.) State v. Teague, 134 N.C. App. 702 (1999).

It was proper in first degree murder case for State to tell the jury that they will be
relying upon circumstantial evidence with no witnesses to the shooting and then ask them
5
if that will cause any problems. State v Clark, 319 N.C. 215 (1987).

Child Witnesses: Trial judge erred in not allowing the defendant to ask prospective
jurors if they thought children were more likely to tell the truth when they allege sexual
abuse. State v Hatfeld, 128 N.C. App. 294 (1998)

Defendants Prior Record: In State v Hedgepath, 66 N.C. App. 390 (1984), the trial
court erred in refusing to allow counsel to question jurors about their willingness and
ability to follow judges instructions that they are to consider defendants prior record
only for purposes of determining credibility.

Defenses (i.e., Specific Defenses): A prospective juror who is unable to accept a
particular defense...recognized by law is prejudiced to such an extent that he can no
longer be considered competent. Such jurors should be removed from the jury when
challenged for cause. State v Leonard, 295 N.C. 58, 62-63 (1978).

a) Accident: Defense counsel is free to inquire into the potential jurors attitudes
concerning the specific defenses of accident or self-defense. State v. Parks, 324
N.C. 420, 378 S.E.2d 785 (1989).

b) Insanity: It was reversible error for trial court to fail to dismiss juror who
indicated he was not willing to return a verdict of NGRI even though defendant
introduced evidence that would satisfy them that the defendant was insane at the
time of the offense. State v Leonard, 295 N.C. 58,62-63 (1978); see also Vinson.

c) Mental Health Defense: The defendant has the right to question jurors about
their attitudes regarding a potential insanity or lack of mental capacity defense,
including questions about: courses taken and books read on psychiatry, contacts
with psychiatrist or persons interested in psychiatry, members of family receiving
treatment, inquiry into feelings on insanity defense and ability to be fair. U.S. v
Robinson, 475 F.2d 376 (D.C. Cir. 1973); U.S. v J ackson, 542 F.2d 403 (7th Cir.
1976).

d) Self-Defense: Defense counsel is free to inquire into the potential jurors
attitudes concerning the specific defenses of accident or self-defense. Parks, 324
N.C. 420, 378 S.E.2d 785 (1989).

Drug-Related Context of Non-Drug Offense: In a prosecution for common law robbery
and assault, there was no error in allowing prosecutor (after telling prospective jurors that
a proposed sale of marijuana was involved) to inquire into whether any of them would be
unable to be fair and impartial for that reason. State v Williams, 41 N.C. App. 287, disc.
rev. denied, 297 N.C. 699 (1979).

The following was not a stake-out question and was a proper inquiry to
determine the impartiality of the jurors: Do you feel like you will automatically turn off
the rest of the case and predicate your verdict of not guilty solely upon the fact that these
6
people were out looking for drugs and involved in the drug environment, and became
victims as a result of that? State v Teague, 134 N.C. App. 702 (1999)

Eyewitness Identification: The following prosecutors question was upheld as proper
(and non-stake-out): Does anyone have a per se problem with eyewitness identification?
Meaning, it is in and of itself going to be insufficient to deem a conviction in your mind,
no matter what the judge instructs you as to the law? The prosecutor was simply
trying to ensure that the jurors could follow the law with respect to eyewitness
testimonythat is treat it no differently that circumstantial evidence. State v. Roberts,
135 N.C. App. 690, 697, 522 S.E.2d 130 (1999).

Expert Witness: If someone is offered as an expert in a particular field such as
psychiatry, could you accept him as an expert, his testimony as an expert in that
particular field. According to State v Smith, 328 N.C. 99, 131 (1991), this was not an
attempt to stake out jurors.

It was not an abuse of discretion for the judge to prevent defense counsel from
asking jurors whether they would automatically reject the testimony of mental health
professionals. This was apparently a stake out question. State v. Neal, 346 N.C. 608,
618 (1997).

Focusing on The Issue:
In a child homicide case, the prosecutor was allowed to ask a prospective juror if he
could look beyond evidence of the childs poor living conditions and lack of motherly
care and focus on the issue of whether the defendant was guilty of killing the child. The
Supreme Court found that this was not a stake-out question. State v. Burr, 341 N.C. 263,
285-86 (1995).

Following the Law: The right to an impartial jury contemplates that each side will be
allowed to make inquiry into the ability of prospective jurors to follow the law.
Questions designed to measure a prospective jurors ability to follow the law are proper
within the context of jury selection. State v. J ones, 347 N.C. 193, 203 (1997), citing
State v. Price, 326 N.C. 56, 66-67, 388 S.E.2d 84, 89, vacated on other grounds, 498 U.S.
802 (1990).

If a jurors answers about a fundamental legal concept (such as the presumption
of innocence) demonstrated either confusion about, or a fundamental
misunderstanding of the principlesor a simple reluctance to apply those principles,
its effect on the jurors inability to give the defendant a fair trial remained the same.
State v. Cunningham, 333 N.C. 744, 754-756, 429 S.E.2d 718 (1993).

Hold-Out Jurors During Deliberations: Generally, questions designed to determine
how well a prospective juror would stand up to other jurors in the event of a split decision
amounts to impermissible stake-out questions. State v. Call, 353 N.C. 400, 409-410,
545 S.E.2d 190, 197 (2001).

7
It is permissible, however, to ask jurors if they understand that, while the law
requires them to deliberate with other jurors in order to try to reach a unanimous verdict,
they have the right to stand by their beliefs in the case. (Note that, if this permissible
question is followed by the question, And would you do that?, this crosses the line into
an impermissible stake-out question.) State v. Elliott, 344 N.C. 242, 262-63, 475 S.E.2d
202, 210 (1997); see also, State v. Maness, 363 N.C. 261 (2009).

Where defense counsel had already inquired into whether jurors could follow the
law as specified in N.C.G.S. 15A-1235 by asking if they could independently weigh the
evidence, respect the opinion of other jurors, and be strong enough to ask other jurors to
to respect his opinion, the trial judge properly limited a redundant question that was
based on an Allen jury instruction. (N.C.P.I.-Crim. 101-40). State v. Maness, 363 N.C.
261 (2009).

Identifying Family Members: Not error to allow the prosecutor during jury selection to
identify members of the murder victims family who are in the courtroom. State v
Reaves, 337 N.C. 700 (1994).

Intoxication: Proper for Prosecutor to ask prospective jurors whether they would be
sympathetic toward a defendant who was intoxicated at the time of the offense. If it is
shown to you from the evidence and beyond a reasonable doubt that the defendant was
intoxicated at the time of the alleged shooting, would this cause you to have sympathy for
him and allow that sympathy to affect your verdict. State v McKoy, 323 N.C. 1 (1988).

Law Enforcement Witness Credibility: If a juror would automatically give enhanced
credibility or weight to the testimony of a law enforcement witness (or any particular
class of witness), he would be excused for cause. State v. Cummings, 361 N.C. 438,
457-58 (2007); State v. McKinnon, 328 N.C. 668, 675-76, 403 S.E.2d 474 (1991).

Legal Principles: Defense counsel may question jurors to determine whether they
completely understood the principles of reasonable doubt and burden of proof. Once
counsel has fully explored an area, however, the judge may limit further inquiry. Parks,
324 N.C. 420, 378 S.E.2d 785 (1989).

The right to an impartial jury contemplates that each side will be allowed to
make inquiry into the ability of prospective jurors to follow the law. Questions designed
to measure a prospective jurors ability to follow the law are proper within the context of
jury selection. State v. J ones, 347 N.C. 193, 203 (1997), citing State v. Price, 326 N.C.
56, 66-67, 388 S.E.2d 84, 89, vacated on other grounds, 498 U.S. 802 (1990).

Defendant Not Testifying: It is proper for defense counsel to ask questions
concerning a defendants failure to testify in his own defense. A court, however,
may disallow questioning about the defendants failure to offer evidence in his
defense. State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994).

Court erred in denying the defendants challenge for cause of juror who
8
repeatedly said that the defendants failure to testify would stick in the back of my
mind while he was deliberating (in response to question whether the defendants
failure to testify would affect his ability to give him a fair trial). State v
Hightower, 331 N.C. 636 (1992).

Presumption of Innocence and Burden of Proof: A juror gave conflicting and
ambiguous answers about whether she could presume the defendant innocent and
whether she would require him to prove his innocence. The Supreme Court
awarded the defendant a new trial because the trial judge denied the defendants
challenge for cause. The Supreme Court said that the jurors answers
demonstrated either confusion about, or a fundamental misunderstanding of
the principles of the presumption of innocence, or a simple reluctance to
apply those principles. Regardless whether the juror was confused, had a
misunderstanding, or was reluctant to apply the law, its effect on her ability to
give the defendant a fair trial remained the same. State v. Cunningham, 333 N.C.
744, 754-756, 429 S.E.2d 718 (1993).

Pretrial Publicity: Inquiry should be made regarding the effect of the publicity upon
jurors ability to be impartial or keep an open mind. Mumin, 500 U.S. 415, 419-421,
425 (1991). Although Questions about the content of the publicitymight be helpful in
assessing whether a juror is impartial, they are not constitutionally required. Id. at 425.
The constitutional question is whether jurors had such fixed opinions that they could not
be impartial, not whether or what they remembered about the publicity. It is not required
that jurors be totally ignorant of the facts and issues involved. Id., 500 U.S. at 426 and
430.
It was deemed proper for a prosecutor to describe some of the uncontested
details of the crime before he asked jurors whether they knew or read anything about the
case. State v. Nobles, 350 N.C. 483, 497-498, 515 S.E.2d 885, 894-895 (1999) (ADA
noted that defendant was charged with discharging a firearm into a vehicle occupied by
his wife and three small children). It was not a stake-out question.

Racial/Ethnic Background: Trial courts must allow questions regarding whether any
jurors might be prejudiced against the defendant because of his race or ethnic group
where the defendant is accused of a violent crime and the defendant and the victim were
members of different racial or ethnic groups. (If this criteria is not met, racial and ethnic
questions are discretionary.) Rosales-Lopez v. United States, 451 U.S. 182, 189, 101
S.Ct. 1629, 68 L.Ed.2d 22 (1981). Such questions must be allowed in capital cases
involving a charge of murder of a white person by a black defendant. Turner v. Murray,
476 U.S. 28, 106 S.Ct. 1783, 90 L.Ed.2d 27 (1986).

Sexual Offense/Medical Evidence: In a sexual offense case, the prosecutor asked, To
be able to find one guilty beyond a reasonable doubt, are you going to require that there
be medical evidence that affirmatively says an incident occurred? This was a proper,
non-stake-out question. Since the law does not require medical evidence to corroborate a
victims story, the prosecutors question was a proper attempt to measure prospective
jurors ability to follow the law. State v. Henderson, 155 N.C. App. 719, 724-727 (2003).
9
Sexual Orientation: Proper for prosecutor to question jurors regarding prejudice against
homosexuality for the purpose of determining whether they could impartially consider
the evidence knowing that the States witnesses were homosexual. State v Edwards, 27
N.C. App. 369 (1975).

IV. IMPROPER QUESTIONS OR IMPROPER PURPOSES

Answers to Legal Questions: Counsel should not fish for answers to legal questions
before the judge has instructed the juror on applicable legal principles by which the juror
should be guided. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). [Does this mean
can counsel get judge to give preliminary instructions before voir dire, and then ask questions about the
law?]

Arguments that are Prohibited: A lawyer (even a prosecutor) may not make
statements during jury selection that would be improper if they were later argued to the
jury. State v. Hines, 286 N.C. 377, 385, 211 S.E.2d 201 (1975) (reversible error for the
prosecutor to make improper statements during voir dire about how the death penalty is
rarely enforced).

Confusing and Ambiguous Questions: Hypothetical questions so phrased to be
ambiguous and confusing are improper. For example, Now, everyone on the jury is in
favor of capital punishment for this offenseIs there anyone on the jury, because the
nature of the offense, feels like you might be a little bit biased or prejudiced, either
consciously or unconsciously, because of the type or the nature of the offense involved; is
there anyone on the jury who feels that they would be in favor of a sentence other than
death for rape? (see, Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975)); or, Would you be
willing to be tried by one in your present state of mind if you were on trial in this case?
State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978).

Inadmissible Evidence: An attorney may not ask prospective jurors about inadmissible
evidence. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973).

Incorrect Statements of Law: Questions containing incorrect or inadequate statements
of the law are improper. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975).

Indoctrination of Jurors: Counsel should not engage in efforts to indoctrinate jurors
and counsel should not argue the case in any way while questioning jurors. State v.
Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). In order to constitute an attempt to
indoctrinate potential jurors, the improper question would be aimed at indoctrinating
jurors with views favorable to the [questioning party]oradvancing a particular
position. State v. Chapman, 359 N.C. 328, 346 (2005). An example of a non-
indoctrinating question is: Can you imagine a set of circumstances in whichyour
personal beliefs conflict with the law? In that situation, what would you do? See
Chapman.

Overbroad and General Questions: Would you consider, if you had the opportunity,
10
evidence about this defendant, either good or bad, other than that arising from the
incident here? This question was overly broad and general, and not proper for voir
dire. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973).

Rapport Building: Counsel should not visit with or establish rapport with jurors.
State v. Phillips, 300 NC 678, 268 SE2d 452 (1980).

Repetitive Questions: The court may limit repetitious questions. Vinson, 287 N.C. 326,
215 S.E.2d 60 (1975). Where defense counsel had already inquired into whether jurors
could independently weigh the evidence, respect the opinion of other jurors, and be
strong enough to ask other jurors to to respect his opinion, the trial judge properly
limited a redundant question that was based on an Allen jury instruction. State v.
Maness, 363 N.C. 261 (2009).

Stake-Out Questions:
Staking out jurors is improper. Simpson, 341 N.C. 316, 462 S.E.2d 191, 202 (1995).
Staking out is seen as an attempt to indoctrinate potential jurors as to the substance of
defendants defense. State v. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989).

Staking out defined: Questions that tend to commit prospective jurors to a specific
future course of action in the case. Chapman, 359 N.C. 328, 345-346 (2005).

Counsel may not pose hypothetical questions designed to elicit in advance what
the jurors decision will be under a certain state of the evidence or upon a given state of
facts...The court should not permit counsel to question prospective jurors as to the kind of
verdict they would render, or how they would be inclined to vote, under a given state of
facts. State v Vinson, 287 N.C. 326, 336-37 (1975), death sentence vacated, 428 U.S.
902 (1976).

Examples of Stake-Out Questions:

1) Is there anyone on the jury who feels that because the defendant had a gun in his
hand, no matter what the circumstances might be, that if that-if he pulled the trigger to
that gun and that person met their death as result of that, that simply on those facts alone
that he must be guilty of something? Parks, 324 N.C. 420, 378 S.E.2d 785 (1989).

2) Improper reasonable doubt questions:
a) What would your verdict be if the evidence were evenly balanced?
b) What would your verdict be if you had a reasonable doubt about the
defendants guilt?
c) What would your verdict be if you were convinced beyond a reasonable doubt
of the defendants guilt? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60
(1975).
d) The judge will instruct you that you have to find each element beyond a
reasonable doubt. Mr. [Juror], if you hear the evidence that comes in and
find three elements beyond a reasonable doubt, but you dont find on the
11
fourth element, what would your verdict be? State v. J ohnson, __
N.C.App. __, 706 S.E.2d. 790, 796 (2011)

3) Whether you would vote for the death penalty [in a specified hypothetical
situation]? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975).

4) If you find from the evidence a conclusion which is susceptible to two reasonable
interpretations; that is, one leading to innocence and one leading to guilt, will you adopt
the interpretation which points to innocence and reject that of guilt? State v. Vinson, 287
N.C. 326, 215 S.E.2d 60 (1975).

5) If it was shownthat the defendant couldnt control his actions and didnt know what
was going on,would you still be inclined to return a verdict which would cause the
imposition of the death penalty? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975).

6) If you are satisfied from the evidence that the defendant was not conscious of his act at
the time it allegedly was committed, would you still feel compelled to return a guilty
verdict? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975).

7) If you are satisfied beyond a reasonable doubt that the defendant committed the act
but you believed that he did not intentionally or willfully commit the crime, would you
still return a guilty verdict knowing that there would be a mandatory death sentence?
State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975).

8) Improper Burden of Proof Questions:
a) If the defendant chose not to put on a defense, would you hold that against him
or take it as an indication that he has something to hide?
b) Would you feel the need to hear from the defendant in order to return a verdict
of not guilty?
c) Would the defendant have to prove anything to you before he would be entitled
to a not guilty verdict? State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994); State
v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980), or
d) Would the fact that the defendant called fewer witnesses than the State make a
difference in your decision as to her guilt? State v. Rogers, 316 N.C. 203, 341 S.E.2d
713 (1986).

9) Improper Insanity Questions:
a) Do you know what a dissociative period is and do you believe that it is possible
for a person not to know because some mental disorder where they actually are, and do
things that they believe they are doing in another place and under circumstances that are
not actually real?
b) Are you thinking, well if the defendant says he has PTSD, for that reason alone,
I would vote that he is guilty? State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

10) Improper Hold-out J uror Questions:
a) A question designed to determine how well a prospective juror would stand up
12
to other jurors in the event of a split decision amounts to an impermissible stake-out.
State v. Call, 353 N.C. 400, 409-410, 545 S.E.2d 190, 197 (2001). For example, if you
personally do not think that the State has proved something beyond a reasonable doubt
and the other 11 jurors have, could you maintain the courage of your convictions and
say, theyve not proved that?

b) It is permissible to ask jurors if they understand that, while the law requires
them to deliberate with other jurors in order to try to reach a unanimous verdict, they
have the rights to stand by their beliefs in the case. If this permissible question is
followed by the question, And would you do that? this crosses the line into an
impermissible stake-out question. State v. Elliott, 344 N.C. 242, 263, 475 S.E.2d 202,
210 (1996).

c) The following hypothetical inquiry was deemed an improper stake-out
question: If you were convinced that life imprisonment without parole was the
appropriate penalty after hearing the facts, the evidence, and the law, could you return a
verdict of life imprisonment without parole even if you fellow jurors were of different
opinions? State v. Maness, 363 N.C. 261, 269-70 (2009).

11) Improper Questions about Witness Credibility:
a) What type of facts would you look at to make a determination if someones
telling the truth?
b) In determining whether to believe a witness, would it be important to you that
a person could actually observe or hear what they said [that] they have [seen or heard]
from the witness stand? State v. J ohnson, __ N.C.App. __, 706 S.E.2d. 790, 793-94
(2011).
c) 11) Whether you would automatically reject the testimony of mental health
professionals. State v. Neal, 346 N.C. 608, 618 (1997).

Examples of NON-Stake Out Questions:
1) Prosecutor asked the jurors if they would consider that the defendant voluntarily
consumed alcohol in determining whether the defendant was entitled to diminished
capacity mitigating factor. The Supreme Court stated, This was a proper question. He
did not attempt to stake the jury out as to what their answer would be on a hypothetical
question. State v. Reeves, 337 N.C. 700 (1994)

2) Prosecutor informed prospective jurors that only the three people charged with the
crimes know what happened to the victimsandnone of the three would testify against
the others and therefore the State had no eyewitness testimony to offer. He then asked:
Knowing that this is a serious case, a first degree murder case, do you feel like you have
to say to yourself, well, the case is just too seriousto decide based upon circumstantial
evidence and I would require more than circumstantial evidence to return a verdict of
first degree murder? Court found that these statements properly (1) informed the jury
that the state would be relying on circumstantial evidence and (2) inquired as to whether
the lack of eyewitnesses would cause them problems. (Also, it was not a stake-out
question.) State v. Teague, 134 N.C. App. 702 (1999).
13
3) Do you feel like you will automatically turn off the rest of the case and predicate
your verdict of not guilty solely upon the fact that these people were out looking for drugs
and involved in the drug environment, and became victims as a result of that? State v
Teague, 134 N.C. App. 702 (1999).

4) If someone is offered as an expert in a particular field such as psychiatry, could you
accept him as an expert, his testimony as an expert in that particular field. According
to State v Smith, 328 N.C. 99, 131 (1991), this was NOT an attempt to stake out jurors.

5) Proper non-stake-out questions (by the prosecutor) about a co-
defendant/accomplice with a plea arrangement from State v. J ones, 347 N.C. 193,
201-202, 204, 491 S.E.2d 641, 646 (1997):
a) There may be a witness who will testifypursuant to a plea arrangement, plea
bargain, or deal with the State. Would the mere fact that there is a plea bargain with
one of the States witnesses affect your decision or your verdict in this case?

b) Could you listen to the courts instructions of how you are to view accomplice
or interested witness testimony, whether it came from the State or the defendant.?

c) After having listened to that testimony and the courts instructions as to what
the law is, and you found that testimony believable, could you give it the same weight as
you would any other uninterested witness?

6) Proper non-stake-out questions asked by prosecutor about views on death penalty
from State v. Chapman, 359 N.C. 328, 344-346 (2005):
a) As you sit here now, do you know how you would vote at the penalty
phaseregardless of the facts or circumstances in the case?

b) Do you feel like in any particular case you are more likely to return a verdict
of life imprisonment or the death penalty?

c) Can you imagine a set of circumstances in whichyour personal beliefs [for or
against the death penalty] conflict with the law? In that situation, what would you do?

A federal court in United States v. J ohnson, 366 F.Supp. 2d 822 (N.D. Iowa
2005), explained how to avoid improper stakeout questions in framing proper case-
specific questions. A proper question should address the jurors ability to consider both
life and death instead of seeking to secure a jurors pledge vote for life or death under a
certain set of facts. 366 F.Supp. 2d at 842-844. For example, questions about 1) whether
a juror could find (instead of would find) that certain facts call for the imposition of life
or death, or 2) whether a juror could fairly consider both life and death in light of
particular facts are appropriate case-specific inquiries. 366 F.Supp. 2d at 845, 850.
Case-specific questions should be prefaced on if the evidence shows, or some other
reminder that an ultimate determination must be based on the evidence at trial and the
courts instructions. 366 F.Supp. 2d at 850.

14
7) The prosecutors question, Would you feel sympathy towards the defendant simply
because you would see him here in court each day? was NOT a stake-out attempt to
get jurors to not consider defendants appearance and humanity in capital sentencing
hearing. Chapman, 359 N.C. 328, 346-347 (2005).

8) Prosecutor properly asked non-stake-out questions about jurors abilities to follow
the law regarding acting in concert, aiding and abetting, and the felony murder rule in
State v. Cheek, 351 N.C. 48, 65-68, 520 S.E.2d 545, 555-557 (1999):

a) [I]f you were convinced, beyond a reasonable doubt, of the defendants guilt,
even though he didnt actually pull the trigger or strike the match or strike the blow in
the murder, but that he was guilty of aiding and abetting and shared the intent that the
victim be killedcould you return a verdict of guilty on that?

b) [T]he fact that one person may not have actually struck the blow or pulled the
trigger or lit the match, but yet he could be guilty under the felony murder rule if he was
jointly acting together with someone else in the kidnapping or committing an armed
robbery?
c) [C]ould you follow the lawunder the felony murder rule and find someone
guilty of first-degree murder, if you were convinced, beyond a reasonable doubt, that they
had engaged in the underlying felony of either kidnapping or armed robbery, and find
them guilty, even though they didnt actually strike the blow or pull the trigger or light
the matchthat caused [the victims] death?

9) In a sexual offense case, the prosecutor asked, To be able to find one guilty beyond a
reasonable doubt, are you going to require that there be medical evidence that
affirmatively says an incident occurred? This was NOT a stake-out question. Since the
law does not require medical evidence to corroborate a victims story, the prosecutors
question was a proper attempt to measure prospective jurors ability to follow the law.
State v. Henderson, 155 N.C. App. 719, 724-727 (2003) (The court said that the
following question would have been a stake-out if the ADA had asked it, If there is
medical evidence stating that some incident has occurred, will you find the defendant
guilty beyond a reasonable doubt).

10) In a case involving eyewitness identification, the prosecutor asked: Does anyone
have a per se problem with eyewitness identification? Meaning, it is in and of itself
going to be insufficient to deem a conviction in your mind, no matter what the judge
instructs you as to the law? The Court said that this question did NOT cause the jurors
to commit to a future course of action. The prosecutor was simply trying to ensure that
the jurors could follow the law with respect to eyewitness testimonythat is treat it no
differently that circumstantial evidence. State v. Roberts, 135 N.C. App. 690, 697, 522
S.E.2d 130 (1999).

11) In a child homicide case, the prosecutor was allowed to ask a prospective juror if he
could look beyond evidence of the childs poor living conditions and lack of motherly
care and focus on the issue of whether the defendant was guilty of killing the child. The
15
Supreme Court found that this was not a stake-out question. State v. Burr, 341 N.C. 263,
285-86 (1995).

JURY SELECTION IN DEATH PENALTY CASES

I. GENERAL PRINCIPLES

Both the defendant and the state have the right to question prospective jurors
about their views on capital punishmentThe extent and manner of the inquiry by
counsel lies within the trial courts discretion and will not be overturned absent an abuse
of discretion. State v. Brogden, 334 N.C. 39, 430 S.E.2d 905, 908 (1993).

A defendant on trial for his life should be given great latitude in examining
potential jurors. State v Conner, 335 N.C. 618 (1995).

[C]ounsel may seek to identify whether a prospective juror harbors a general
preference for a life or death sentence or is resigned to vote automatically for either
sentence.A juror who is predisposed to recommend a particular sentence without
regard for the unique facts of a case or a trial judges instruction on the law is not fair and
impartial. State v. Chapman, 359 N.C. 328, 345 (2005) (citation omitted).

Part of the Sixth Amendments guarantee of a defendants right to an impartial
jury is an adequate voir dire to identify unqualified jurorsVoir dire plays a critical
function in assuring the criminal defendant that his constitutional right to an impartial
jury will be honored. Morgan v Illinois, 504 U.S. 719, 729, 733 (1992)

Voir dire must be available to lay bare the foundation of a challenge for cause
against a prospective juror. Were voir dire not available to lay bare the foundation of
petitioners challenge for cause against those prospective jurors who would always
impose death following conviction, his right not to be tried by such jurors would be
rendered as nugatory and meaningless as the States right, in the absence of questioning,
to strike those who would never do so. Morgan, 504 U.S. at 733-34.

In voir dire, what matters is how[the questions regarding capital punishment]
might be understood-or misunderstood-by prospective jurors. For example, a general
question as to the presence of reservations [against the death penalty] is far from the
inquiry which separates those who would never vote for the ultimate penalty from those
who would reserve it for the direst cases. One cannot assume the position of a
venireman regarding this issue absent his own unambiguous statement of his beliefs.
Witherspoon, 391 U.S. at 515, n. 9.

The trial court must allow a defendant to go beyond the standard fair and
impartial question: As to general questions of fairness and impartiality, such jurors
could in all truth and candor respond affirmatively, personally confident that such
dogmatic views are fair and impartial, while leaving the specific concern unprobed...It
16
may be that a juror could, in good conscience, swear to uphold the law and yet be
unaware that maintaining such dogmatic beliefs about the death penalty would prevent
him or her from doing so. A defendant on trial for his life must be permitted on voir dire
to ascertain whether his prospective jurors function under such misconception. Morgan,
504 U.S. at 735-36.

It is not necessary for the trial court to explain or for a juror to understand the
process of a capital sentencing proceeding before the juror can be successfully
challenged for his answers to questions. An understanding of the process should not
affect ones beliefs regarding the death penalty. Simpson, 341 N.C. 316, 462 SE2d
191, 202, 206 (1995).

II. Death Qualification: General Opposition to Death Penalty Not Enough

Under the impartial jury guarantee of the Sixth Amendment, death penalty
jurors may not be excused for cause simply because they voiced general objections to
the death penalty or expressed conscientious or religious scruples against its
infliction, or that there are some kinds of cases in which they would refuse to
recommend capital punishment. Witherspoon, 391 U.S. at 522, 512-13.

The Supreme Court recognized that A man who opposes the death penaltycan
make the discretionary judgment entrusted to him by the state and can thus obey the oath
he takes as a juror. Id., 391 U.S. at 519.

Not all [jurors] who oppose the death penalty are subject to removal for cause
in capital cases; those who firmly believe that the death penalty is unjust may
nevertheless serve as jurorsso long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the rule of law. Lockhart v.
McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149 (1986). [Note that
the Court in Lockhart reaffirmed its position that death-qualified juries are not conviction-prone, and it is
constitutional for a death-qualified jury to decide the guilt/innocence phase. The Court rejected the fair-
cross-section argument against death-qualified juries deciding guilt.]

[A] juror is not automatically excluded from jury service merely because that
juror may have an opinion about the propriety of the death penalty. State v. Elliott, 360
N.C. 400, 410 (2006). General opposition to the death penalty will not support a
challenge for cause for a potential juror who will conscientiously apply the law to the
facts adduced at trial. Such a juror may be properly excluded if he refuses to follow
the statutory scheme and truthfully answer the questions put by the trial judge.
State v. Brogden, 430 S.E.2d at 907-08 (1993)(citing Witt, Adams v. Texas, and
Lockhart).

III. Death Qualification Rules: Witherspoon and Witt Standards

The State may excuse jurors who make it "unmistakably clear that (1) they
17
would automatically vote against the death penalty no matter what the facts of the
case were, or (2) their attitude about the death penalty would prevent them from
making an impartial decision regarding the defendants guilt. Witherspoon, 391
U.S. at 522, n. 21 (1968).

A . . . prospective juror cannot be expected to say in advance of trial whether he
would in fact vote for the extreme penalty in the case before him. The most that can be
demanded of a venireman in this regard is that he be willing to consider all of the
penalties provided by state law, and that he not be irrevocably committed against the
penalty of death regardless of the facts and circumstances... that might emerge
during the trial. Witherspoon v Illinois, 391 U.S. 510, 523 n.21 (1968).

The proper standard for excusing a prospective juror for cause because of his
views on capital punishment is: Whether the jurors views would prevent or
substantially impair the performance of his duties as a juror in accordance with his
instruction or his oath. Wainwright v. Witt, 469 U.S. at 424.

Note that considerable confusion regarding the law on the part of the juror
could amount to substantial impairment. Uttecht v. Brown, 551 U.S. 1, 127. S.Ct.
2218, 167 L.Ed.2d 1014, 1029 (2007).

Prospective jurors may not be excused for cause simply because of the possibility
of the death penalty may affect what their honest judgment of the facts will be or
what they may deem to be a reasonable doubt. The fact that the possible imposition
of the death penalty would affect their deliberations by causing them to be more
emotionally involved or to view their task with greater seriousness is not grounds for
excusal. The same rule against exclusion for cause applies to jurors who could not
confirm or deny that their deliberations would be affected by their views about the
death penalty or by the possible imposition of the death penalty. Adams v. Texas, 448
U.S. 38, 49-50 (1980).

The State may excuse for cause a juror if he affirmatively answers the following
question: Is your conviction [against the death penalty] so strong that you cannot
take an oath [to fairly try this case and follow the law], knowing that a possibility
exists in regard to capital punishment. Lockett v. Ohio, 438 U.S. 586, 595-96 (1978).
This ruling was based on the impartiality prong of the Witherspoon standard (i.e., their
attitudes toward the death penalty would prevent them from making an impartial
decision as to the defendants guilt.)

The N.C. Supreme Court has upheld the removal of potential jurors who
equivocate or who state that although they believe generally in the death penalty, they
indicate that they personally would be unable or would find it difficult to vote for the
death penalty. Simpson, 341 N.C. 316, 462 S.E.2d 191, 206 (1995); State v. Gibbs, 335
NC 1, 436 SE2d 321 (1993), cert. denied, 129 L.Ed.2d 881 (1994).

The following questions by the prosecutor were found to be proper:
18
1) [Mr. J uror], how do you feel about the death penalty, sir, are you opposed to
it or [do] you feel like it is a necessary law?
2) Do you feel that you could be part of the legal machinery which might bring it
about in this particular case? State v Willis, 332 N.C. 151, 180-81 (1992).

IV. Rehabilitation of Death Challenged Juror

It is not an abuse of for the trial court to deny the defendant the chance to
rehabilitate a juror who has expressed clear and unequivocal opposition to the death
penalty in response to questions asked by the prosecutor and judge when further
questioning by defendant would not have likely produced different answers.
Brogden, 334 N.C. 39, 430 SE2d 905, 908-09 (1993); see also State v. Taylor, 332 N.C.
372, 420 S.E.2d 414 (1992). [In Brogden, a juror said that he could consider the evidence, was not
predisposed either way, and could vote for death in an appropriate case. The same juror also said his
feelings about the death penalty would partially or to some extent affect his performance as a juror.
The trial court erroneously denied the defendant the opportunity to rehabilitate this juror.]

It is error for a trial court to enter a general ruling, as a matter of law, a
defendant will never be allowed to rehabilitate a juror when the jurors answershave
indicated that the juror may be unable to follow the law and fairly consider the
possibility of recommending a sentence of death. State v. Green, 336 N.C. 142, 161
(1994) (based on Brogdon).

V. Life Qualifying Questions: Morgan v. Illinois

If you found [the defendant] guilty, would you automatically vote to impose
the death penalty no matter what the facts were? Morgan, 504 U.S. at 723. A juror
who will automatically vote for the death penalty in every case will fail to follow the law
about considering aggravating and mitigating evidence, and has already formed an
opinion on the merits of the case. Id. at 504 U.S. at 729, 738.

Clearly, the extremes must be eliminated-i.e., those who, in spite of the evidence,
would automatically vote to convict or impose the death penalty or automatically vote to
acquit or impose a life sentence. Morgan, 504 U.S. at 734, n. 7.

General fairness and follow the law questions are not sufficient. A capital
defendant is entitled to inquire and ascertain a potential jurors predeterminations
regarding the imposition of the death penalty. Morgan, 504 U.S. at 507; State v.
Conner, 335 N.C. 618, 440 S.E.2d 826, 840 (1994).

[For a good summary of Morgan, see U.S. v. J ohnson, 366 F.Supp. 2d 822, 826-
831 (N.D. Iowa 2005).]

19
Proper Questions:

1) As you sit here now, do you know how you would vote at the penalty
phaseregardless of the facts or circumstances in the case? Chapman, 359 N.C. 328,
344-345 (2005).

2) Do you feel like in any particular case you are more likely to return a verdict
of life imprisonment or the death penalty?
[According to the Supreme Court, these general questions (asked by the prosecutor, i.e., #1 and #2
herein) did not tend to commit jurors to a specific future course of action. Instead, the questions helped to
clarify whether the jurors personal beliefs would substantially impair their ability to follow the law. Such
inquiry is not only permissible, it is desirable to safeguard the integrity of a fair and impartial jury for both
parties. Chapman, 359 N.C. 328, 344-345 (2005).]

3) Can you imagine a set of circumstances in whichyour personal beliefs
[for or against the death penalty] conflict with the law? In that situation, what
would you do?

[While a party may not ask questions that tend to stake out the verdict a prospective juror would
render on a particular set of facts, counsel may seek to identify whether a prospective juror harbors a
general preference for a life or death sentence or is resigned to vote automatically for either
sentence.A juror who is predisposed to recommend a particular sentence without regard for the unique
facts of a case or a trial judges instruction on the law is not fair and impartial. State v. Chapman, 359 N.C.
328, 345 (2005) (citation omitted)..The Supreme Court said that, although the prosecutors questions
(numbered 1-3 above) were hypothetical, they did not tend to commit jurors to a specific future course of
action in this case, nor were they aimed at indoctrinating jurors with views favorable to the State. These
questions do not advance any particular position. In fact, the questions address a key criterion of juror
competency, i.e., ability to apply the law despite of their personal views. In addition, the questions were
simple and clear. Chapman, 359 N.C. 328, 345-346 (2005).]

4) Is your support for the death penalty such that you would find it difficult to
consider voting for life imprisonment for a person convicted of first-degree murder?
Approved in State v Conner, 335 N.C. 618 (1994)

5) Would your belief in the death penalty make it difficult for you to follow the
law and consider life imprisonment for first-degree murder? Approved in
State v Conner, 335 N.C. 618 (1994). [The gist of the above two questions (numbered 4 and 5) was
to determine whether the juror was willing to consider a life sentence in the appropriate circumstances or
would automatically vote for death upon conviction. Conner, 440 SE2d at 841.]

6) If at the first stage of the trial you voted guilty for first-degree murder, do you
think that you could at sentencing consider a life sentence or would your feelings
about the death penalty be so strong that you could not consider a life sentence? State
v Conner, 335 N.C. 618, 643-45 (1994) (referring to State v Taylor).

7) If you had sat on the jury and had returned a verdict of guilty, would you
then presume that the penalty should be death? State v Conner, 335 N.C. 618, 643-45
(1994). [Referring to questions used in State v Taylor, 304 N.C. at 265, would now be acceptable). Also
approved in State v. Ward, 354 N.C. 231, 254, 555 S.E.2d 251, 266 (2001) when asked by the prosecutor.]
20
8) If the State convinced you beyond a reasonable doubt that the defendant was
guilty of premeditated murder and you had returned a verdict of guilty, do you think
then that you would feel that the death penalty was the only appropriate punishment?
State v Conner, 335 N.C. 618, 643-45 (1994). [The Court recognized that questions (numbered
here as 6-8) that were deemed inappropriate in State v Taylor, 304 N.C. at 265, would now be acceptable.]

9) A capital defendant must be allowed to ask, whether prospective jurors
would automatically vote to impose the death penalty in the event of a conviction.
State v. Wiley, 355 N.C. 592, 612 (2002) (citing Morgan 504 U.S. 719, 733-736).

Improper Questions:
1) Improper questions due to form (according to Simpson, 341 N.C. 316, 462
S.E.2d 191, 203 (1995)):
a) Do you think that a sentence to life imprisonment is a sufficiently harsh
punishment for someone who has committed cold-blooded, premeditated murder?
b) Do you think that before you would be willing to consider a death sentence for
someone who has committed cold-blooded, premeditated murder, that they would have to
show you something that justified that sentence?

2) Questions that were argumentative, incomplete statement of the law, and
stake-outs are improper. Simpson, 341 N.C. at 339-340.

3) The following question was properly disallowed under Morgan because it was
overly broad and called for a legislative/policy decision: Do you feel that the death
penalty is the appropriate penalty for someone convicted of first-degree murder?
Conner, 335 N.C. at 643.

4) Defense counsel was not allowed to ask the following questions because they
were hypothetical stake-out questions designed to pin down jurors regarding the kind of
fact scenarios they would deem worthy of LWOP or the death penalty:
a) Have you ever heard of a case where you thought that LWOP should be the
appropriate punishment?
b) Have you ever heard of a case where you thought that the death penalty should
be the punishment?
c) Whether you could conceive of a case where LWOP ought to be the
punishment? What type of case is that? State v. Wiley, 355 N.C. 592, 610-613 (2002).

Case-Specific Questions under Morgan:
The court in United States v. J ohnson, 366 F.Supp. 2d 822 (N.D. Iowa 2005)
addressed the issue of whether Morgan allows for case-specific questions (i.e., questions
that ask whether jurors can consider life or death in a case involving stated facts). The
court decided that Morgan did not preclude (or even address) case-specific questions.
366 F.Supp. 2d at 844-845. The essence of the Supreme Courts decision in Morgan
was that, in order to empanel a fair and impartial jury, a defendant must be afforded
the opportunity to question jurors about their ability to consider life and death
sentences based on the facts and law in a particular case rather than automatically
imposing a particular sentence no matter what the facts were. Therefore, the court in
21
J ohnson found that case-specific questions (other than stake-out questions) are
appropriate under Morgan. 366 F.Supp. 2d at 845-846.

In fact case-specific questions may be constitutionally required since a prohibition
on such questions could impede a partys ability to determine whether jurors are
unwaveringly biased for or against a death sentence. 366 F.Supp. 2d at 848.

The J ohnson court explained how to avoid improper stakeout questions in framing
proper case-specific questions. A proper question should address the jurors ability to
consider both life and death instead of seeking to secure a jurors pledge vote for life or
death under a certain set of facts. 366 F.Supp. 2d at 842-844. For example, questions
about 1) whether a juror could find (instead of would find) that certain facts call for the
imposition of life or death, or 2) whether a juror could fairly consider both life and
death in light of particular facts are appropriate case-specific inquiries. 366 F.Supp. 2d
at 845, 850. Case-specific questions should be prefaced on if the evidence shows, or
some other reminder that an ultimate determination must be based on the evidence at trial
and the courts instructions. 366 F.Supp. 2d at 850.

VI. Consideration of MITIGATION Evidence

General Principles:

Pursuant to Morgan v. Illinois, capital jurors must be able to consider and give
weight to mitigating circumstances. Any juror who states that he or she will
automatically vote for the death penalty without regard to the mitigating evidence is
announcing an intention not to follow the instructions to consider mitigating
evidence and to decide if it is sufficient to preclude imposition of the death penalty.
Morgan, 504 U.S. at 738, 119 L.Ed.2d at 508. Such jurors not only refuse to give such
evidence any weight but are also plainly saying that mitigating evidence is not worth their
consideration and that they will not consider it. Morgan, 504 U.S. at 736, 119 L.Ed.2d
at 507. Any juror to whom mitigating factors are likewise irrelevant should be
disqualified for cause, for that juror has formed an opinion concerning the merits of the
case without basis in the evidence developed at trial. Morgan, 504 U.S. at 739, 119
L.Ed.2d at 509.

Not only must the defendant be allowed to offer all relevant mitigating
circumstance, the sentencer [must] listen-that is the sentencer must consider the
mitigating circumstances when deciding the appropriate sentence. Eddings v
Oklahoma, 455 U.S. 104, 115 n.10 (1982)

[J urors] may determine the weight to be given relevant mitigating evidence...[b]ut
they may not give it no weight by excluding such evidence from their consideration.
Eddings v Oklahoma, 455 U.S. 104, 114 (1982)

[The] decision to impose the death penalty is a reasoned moral response to the
22
defendants background, character and crimeJ urors make individualized assessments
of the appropriateness of the death penalty. Penry v. Lynaugh, 109 S.Ct. 2934, 2948-9
(1988)

Procedure must require the sentencing body to consider the character and
record of the individual offender and the circumstances of the particular offense.
Woodsen v North Carolina, 428 U.S. 280, 304 (1976)

In a capital sentencing proceeding before a jury, the jury is called upon to make a
highly subjective, unique individualized judgment regarding the punishment that a
particular person deserves. Turner v Murray, 476 U.S. 23, 33-34 (1985) (quoting
Caldwell v Mississippi, 472 U.S. 320, 340 n.7 (1985).

Potential Inquiries into Mitigation Evidence:

[The N.C. Supreme Court] conclude[d] that, in permitting defendant to inquire
generally into jurors feelings about mental illness and retardation and other
mitigating circumstances, he was given an adequate opportunity to discover any bias
on the part of the juror[That, combined with questions] asking jurors if they would
automatically vote for the death penaltyand if they could consider mitigating
circumstances.., satisfies the constitutional requirements of Morgan.
State v. Skipper, 337 N.C. 1, 21-22 (1994). [Note that the only restrictionwas whether a juror could
consider a specific mitigating circumstance in reaching a decision. State v. Skipper, 337 N.C. 1, 21
(1994)]

The Supreme Court had the following to say about the following question (and
two other questions) originally asked by a prosecutor: Can you imagine a set of
circumstances in whichyour personal beliefs [about __?] conflict with the law? In
that situation, what would you do? Although the prosecutors questions were
hypothetical, they did not tend to commit jurors to a specific future course of action in
this case, nor were they aimed at indoctrinating jurors with views favorable to the State.
These questions do not advance any particular position. In fact, the questions address a
key criterion of juror competency, i.e., ability to apply the law despite of their personal
views. In addition, the questions were simple and clear. Chapman, 359 N.C. 328, 345-
346 (2005).

Note, however, the following questions were deemed improper because 1) they
fished for answers to legal questions before the judge instructed the jury about the
applicable law, and 2) the questions staked-out jurors about what kind of verdict they
would render under certain named circumstances:
a) If the State is able to prove that the defendant premeditatedly and deliberately
killed three people, would you be able to fairly consider things like sociological
background, the way he grew up, if he had an alcohol problem, things like that in
weighing whether he should get death or LWOP?;

b) Assuming the State proves three cold-blooded P&D murders, can you
conceive in your own mind the mitigating factors that would let you find your ability for a
23
penalty less than death? State v. Mitchell, 353 N.C. 309, 318-319 543 S.E.2d 830,
836-837 (2001).

The following question was allowed by the trial court: Do you feel like whatever
we propose to you as a potential mitigating factor that you can give that fair
consideration and not already start out dismissing those and saying those dont count
because of the severity of the crime. State v J ones, 336 N.C. 229, 241 (1994).

An inquiry into jurors latent bias against any type of mitigation evidence may
be appropriate. In Simpson, 341 N.C. 316, 340-341, 462 S.E.2d 191, 205 (1995), the
majority of the following questions were deemed improper questions about whether
jurors could consider certain mitigating circumstances due to form or staking out:
a) Do you think that the punishment that should be imposed for anyone in a
criminal case in general should be effected [sic] by their mental or emotional state at the
time that the crime was committed?
b) If you were instructed by the Court that certain things are mitigating, that is
they are a basis for rendering or returning a verdict of life imprisonment as opposed to
death and were those circumstances established you must give them some weight or
consideration, could you do that?
c) Mr. [Juror], in this case if there was evidence to support, evidence to show
that the defendant was under the influence of a mental or emotional disturbance at the
time of the commission of the murder and if the Court instructed you that was a
mitigating circumstance, if proven, that must be given some weight, could you follow that
instruction?
d) If the Court advises you that by the preponderance of the evidence that if you
are shown that the capability of the defendant to conform his conduct to the requirements
of the law was impaired at the time of the murder, and the Court instructed you that was
a circumstance to which you must give some consideration, could you follow that
instruction?
e) Do you believe that a psychologist or a psychiatrist can be successful in
treating people with mental or emotional disturbances?
f) Do you personally believe, and I am talking about your personal beliefs, that
if by the preponderance of evidence, that is evidence that is established, that a person
who committed premeditated murder was under the influence of a mental or emotional
disturbance at the time that the crime was committed, do you personally consider that as
mitigating, that is as far as supporting a sentence of less than the death penalty?
g) Now if instructed by the Court and if it is supported by the evidence, could
you take into account the defendant's age at the time of the commission of the crime?
h) Do you believe that you could fairly and impartially listen to the evidence and
consider whether any mitigating circumstances the judge instructs you on are found in
the jury consideration at the end of the case?

In finding most of the above-cited questions improper, it was important to the
Supreme Court that the trial court had allowed the defense lawyers to asked jurors about
their experiences with mental problems, mental health professions, and foster care. Such
questions allowed the defendant to explore whether jurors had any latent bias
24
against any type of mitigation evidence. Simpson, 341 N.C. at 341-342.

See discussion of U.S. v. J ohnson, 366 F.Supp. 822 (N.D. Iowa 2005) above for
authority or argument that case-specific inquiry about mitigation should be allowed under
Morgan.

*For more mitigation questions, see below for specific areas of inquiry.

VII. Specific Areas of Inquiry

Accomplice Liability: It was proper for prosecutor to ask prospective juror if he would
be able to recommend the death penalty for someone who did not actually pull the trigger
since it was uncontroverted that the defendant was an accessory. The State could inquire
about the jurors ability to impose the death penalty for an accessory to first-degree
murder. State v Bond, 345 N.C. 1, 14-17, 478 S.E.2d 163 (1996):

a) The evidence will show [the defendant] did not actually pull the trigger.
Would any of you feel like simply because he did not pull the trigger, you could not
consider the death penalty and follow the law concerning the death penalty.

b) Regardless of the facts and circumstances concerning the case, you could not
recommend the death penalty for anyone unless it was the person who pulled the
trigger.

Age of Defendant:
The following question was asked by defense counsel: [T]he defendant will
introduce things that he contends are mitigating circumstances, things like his age at the
time of the crime...Do you feel like you can consider the defendants age at the time the
crime was committed ...and give it fair consideration? The Supreme Court assumed it
was error for the trial court to sustain the States objection to this question. In finding it
harmless, however, the Court stated, [i]n the context that this question was propounded,
the juror is bound to have known the circumstance to which the defendant referred was
the age of the defendant. State v J ones, 336 N.C. 229, 241 (1994)

Note, however, the question Would you consider the age of the defendant to be
of any importance in this case [in deciding whether the death penalty is appropriate]?
was found to be a stake-out question in State v. Womble, 343 N.C. 667, 682 473
S.E.2d 291, 299 (1996).

Aggravating Circumstances:
The Supreme Court has held that questions about a specific aggravating
circumstance that will arise in the case amounts to a stakeout question. State v.
Richmond, 347 N.C. 412, 424, 495 S.E.2d 677 (1998)(could you still consider
mitigating circumstances knowing that the defendant had a prior first-degree murder
conviction); State v. Fletcher, 354 N.C. 455, 465-66 (2001)(in a re-sentencing in which
25
the first-degree murder conviction was accompanied by a burglary conviction, counsel
asked, the State has to prove at least one aggravating factor, that isthe fact that the
murder was part of a burglary. Thats true in this case because [the defendant] was also
convicted of burglary. Knowing that about this case, could you still consider a life
sentence?)

Cost of Life Sentence vs. Death Sentence
In State v. Elliott, 360 N.C. 400, 409-10 (2006), the Supreme Court held that we
cannot say that the trial court clearly abused its discretion when it did not allow defense
counsel to ask, Do you have any preconceived notions about the costs of executing
someone compared to the cost of keeping him in prison for the rest of his life. The
Supreme Court admitted that the question was relevant but, in light of the inquiry the
trial court allowed, it was not a clear abuse of discretion to disallow the question. See
also, State v. Cummings, 361 N.C. 438, 465 (2007). On the other hand, a trial court may
reverse its previous denial and allow the costs question. State v. Polke, 361 N.C. 65,
68 (2006).

Course of Conduct Aggravator (or Multiple Murders):
Prosecutor was not staking out juror when asking: If the State satisfied you... that
the aggravating circumstances were sufficiently substantial to call for the imposition of
the death penalty, then I take it you could give the defendant the death penalty for beating
two humans to death with a hammer, is that correct? State v Laws, 325 N.C. 81 (1989).

Felony Murder Defined:
Prosecutor properly defined felony murder as a killing which occurs during the
commission of a violent felony, such as _____ (the felony in this case was discharging a
firearm into an occupied vehicle). State v. Nobles, 350 N.C. 483, 498, 515 S.E.2d 885,
895 (1999).

Forecast of Aggravating or Mitigating Circumstance(s):
In State v Payne, 328 N.C. 377, 391 (1991), the defendant argued it was improper
for the prosecutor to forecast to the jury during voir dire that they might consider HAC as
an aggravating factor. The Court found no error and stated: [I]t is permissible for a
prosecutor during voir dire to state briefly what he or she anticipates the evidence
may show, provided the statements are made in good faith and are reasonably grounded
in the evidence available to the prosecutor.

A defendant is not entitled to put on a mini-trial of his evidence during voir dire
by using hypothetical situations to determine whether a juror would cast his vote for his
theory. The trial court in Cummings allowed defense counsel to question prospective
jurors about whether they had been personally involved in any of those situations
[such as domestic violence, child abuse, and alcohol and drug abuse], however, the judge
properly refused to allow defense counsel to ask hypothetical and speculative
questions that were being used to try the mitigation evidence during jury selection. State
v. Cummings, 361 N.C. 438, 464-65 (2007).

26
Foster Care:
It was proper to ask, Whether any jurors have had any experience with foster
care? Simpson, 341 N.C. 316, 462 S.E.2d 191, 205 (1995).

Gender of Defendant [or Victim?]:
The prosecutor properly asked, Would the fact that the Defendant is a female in
any way affect your deliberations with regard to the death penalty? This was not a
stake-out question. It was appropriate to inquire into the possible sensitivities of
prospective jurors toward a female defendant facing the death penalty in an effort to
ferret out any prejudice arising out of defendants gender. State v. Anderson, 350 N.C.
152, 170-171, 513 S.E.2d 296, 307-308 (1999).

HAC Aggravator:
In State v Payne, 328 N.C. 377, 391 (1991), the defendant argued it was improper
for the prosecutor to forecast to the jury during voir dire that they might consider HAC as
an aggravating factor. The Court found no error and stated: [I]t is permissible for a
prosecutor during voir dire to state briefly what he or she anticipates the evidence may
show, provided the statements are made in good faith and are reasonably grounded in the
evidence available to the prosecutor.

Impaired Capacity (f)(6):
Could the juror consider impaired capacity due to intoxication by drugs or
alcohol as a mitigating circumstance and give the evidence such weight as you believe it
is due ? Would your feelings about drugs or alcohol prevent you from considering the
evidence ? State v Smith, 328 N.C. 99, 127 (1991). (See, where Court found that the
following was a stake-out question: How many of you think that drug abuse is irrevelant
to punishment in this case. State v. Ball, 344 N.C. 290, 304, 474 S.E.2d 345, 353
(1996).

Prosecuting attorney asked the jurors, If they would consider that the defendant
voluntarily consumed alcohol in determining whether the defendant was entitled to
diminished capacity mitigating factor. The Supreme Court stated: This was a proper
question. He did not attempt to stake the jury out as to what their answer would be on a
hypothetical question. State v. Reeves, 337 N.C. 700 (1994).

It was proper for prosecutor to ask prospective jurors whether they would be
sympathetic toward a defendant who was intoxicated at the time of the offense. (If it is
shown to you from the evidence and beyond a reasonable doubt that the defendant was
intoxicated at the time of the alleged shooting, would this cause you to have sympathy for
him and allow that sympathy to affect your verdict.) State v McKoy, 323 N.C. 1 (1988).

Lessened Juror Responsibility:
In closing argument and during jury selection, it is improper for a prosecutor to
make statements that lessens the jurys role or responsibility in imposing a potential
death penalty or lessens the seriousness or reality of a death sentence. State v. Hines,
286 N.C. 377, 381-86, 211 S.E.2d 201 (1975) (reversible error for the prosecutor to tell a
27
prospective juror, to ease your feelings [about imposing the death penalty], I might
saythat one [person] has been put to death in N.C. since 1961; State v. White, 286
N.C. 395, 211 S.E.2d 445 (1975), State v. J ones, 296 N.C. 495, 497-502 (1979) (it is
error for a prosecutor to suggest that the appellate process or executive clemency will
correct any errors in a jurys verdict); State v. J ones, 296 N.C. at 501-502 (prosecutor
improperly discussed how 15A-2000(d) provides for an automatic appeal and how the
Supreme Court must overturn a death sentence if it makes certain findings. This had the
effect of minimizing in the jurors minds their role in recommending a death sentence).

Life Sentence (Without Parole):
During jury selection, a prospective juror indicated that he did not feel that a life
sentence actually meant life (prior to LWOP statute). The trial court then instructed the
jury that they should consider a life sentence to mean that defendant would be imprisoned
for life and that they should not take the possibility of parole into account in reaching a
verdict. The juror indicated that he would have trouble following that instruction and was
excused for cause. Defense counsel requested that he be allowed to ask the other
prospective jurors whether they could follow the courts instructions on parole. The trial
court erroneously refused to allow the question. The Supreme Court held that the
defendant has a right to inquire as to whether a prospective juror will follow the
courts instruction (i.e., life means life). State v J ones, 336 N.C. 229, 239-40 (1994).

In several cases, the Supreme Court has upheld the refusal to allow defense
counsel to ask about jurors understanding of the meaning of a sentence of life without
parole, conceptions of the parole eligibility of a defendant serving a life sentence, or
their feelings about whether the death penalty is more or less harsh that life in prison
without parole. State v. Neal, 346 N.C. 608, 617-18 (1997); State v. J ones, 358 N.C.
330 (2004); State v. Garcell, 363 N.C. 10, 30-32 (2009). These decisions were based on
the principle that a defendant does not have the constitutional right to question the venire
about parole. State v. Neal, 346 N.C. at 617.

In light of this, a safe inquiry might avoid the topic of parole and simply ask
jurors about their views of a life sentence for first-degree murder.

Another safe inquiry might be based on 15A-2002 which provides that the judge
shall instruct the jurythat a sentence of life imprisonment means a sentence of life
without parole. There is no doubt that the jury will hear this instruction and, generally,
the parties should be allowed to inquire whether jurors hold misconceptions that will
affect their ability to follow the law. Questions designed to measure a prospective
jurors ability to follow the law are proper within the context of jury selection voir
dire. See, State v. J ones, 347 N.C. 193, 203 (1997), citing State v. Price, 326 N.C. 56,
66-67, 388 S.E.2d 84, 89, vacated on other grounds, 498 U.S. 802 (1990); State v.
Henderson, 155 N.C.App. 719, 727 (2003)

A jurors misperception about a life sentence with no possibility of parole may
substantially impair his or her ability to follow the law. Uttecht v. Brown, 551 U.S. 1,
127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). In Uttecht, despite a juror being informed four
28
or five times that a life sentence meant life imprisonment without the possibility of
parole, the juror continued to say that he would support the death penalty if the
defendant would be released to re-offend. That juror was properly removed for cause.
167 L.E.d2d at 1025-30.

In a pre-LWOP case, the prosecutor improperly argued that the defendant could
be paroled in 20 years if the jury awarded him a life sentence. The Supreme Court stated
that, The jurys sentence recommendation should be based solely on their
balancing the aggravating and mitigating factors before them. The possibility of
parole is not such a factor, and it has no place in the jurys recommendation of their
sentence to be imposed. State v. J ones, 296 N.C. 495, 502-503 (1979). This principle
might provide authority for inquiring into jurors erroneous beliefs about parole to
determine if they can follow the law.

Mental or Emotional Disturbance:
If the court instructs you that you should consider whether or not a person is
suffering from mental or emotional disturbance in deciding whether or not to give
someone the death penalty, do you feel like you could follow the instruction? State v
Skipper, 337 N.C. 1, 20 (1994)).

The following were proper mental health related questions as found in Simpson,
341 N.C. 316, 462 S.E.2d 191, 205 (1995):
1) Whether the jurors had any background or experience with mental problems in
their families ?

2) Whether the jurors have any bias against or problem with any mental health
professionals ?

Murder During Felony Aggravator (e)(5):
Prosecutor informed jury about aggravating factors and indicated that the State is
relying upon...the capital felony was committed while the defendant was engaged, or was
an aider and abettor in the commission of, or attempt to commit...any homicide, robbery,
rape.... Supreme Court said that the prosecutor during jury voir dire should limit
reference to aggravating factors, including the underlying felonies listed in G.S. 15A-
2000(e)(5), to those of which there will be evidence and upon which the prosecutor
intends to rely. Payne, 328 N.C. 377 (1991)

No Significant Criminal Record:
The following question was deemed improper as hypothetical and an
impermissible attempt to indoctrinate a juror: Would the fact that the defendant had no
significant history of any criminal record, would that be something that you would
consider important in determining whether or not to impose the death penalty? State v.
Davis, 325 N.C. 607, 386 S.E.2d 418 (1989).

Personal Strength to Vote for Death:
Prosecutor asked: Are you strong enough to recommend the death penalty ?
29
State v Smith, 328 N.C. 99, 128 (1991). This repeated inquiry by prosecutor is not an
attempt to see how jurors would be inclined to vote on a given state of facts. State v.
Fleming, 350 N.C. 109, 125, 512 S.E.2d 720, 732 (1999).

Prosecutors were allowed to ask jurors whether they possessed the intestinal
fortitude [or courage, or backbone] to vote for a sentence of death. When jurors
equivocated on the imposition of the death penalty, prosecutors were allowed to ask these
questions to determine whether they could comply with the law. State v. Murrell, 362
N.C. 375, 389-91 (2008); State v. Oliver, 309 N.C. 326, 355 (1983); State v. Flippen, 349
N.C. 264, 275 (1998); State v. Hinson, 310 N.C. 245, 252 (1984).

Religious Beliefs:
The defendants right of inquiry includes the right to make appropriate inquiry
concerning a prospective jurors moral or religious scruples, morals, beliefs and attitudes
toward capital punishment. State v. Vinson, 287 N.C. 326, 337, 215 S.E.2d 60, 69
(1975), death sentence vacated, 428 U.S. 902, 49 L.Ed.2d 1206 (1976). The issue is
whether the prospective jurors religious views would impair his ability to follow the law.
State v. Fletcher, 354 N.C. 455, 467 (2001). This right of inquiry does not extend to all
aspects of the jurors private lives or of their religious beliefs. State v. Laws, 325 N.C.
81, 109, 381 S.E.2d 609, 625 (1989).

General questions about the effect of a jurors religious views on his ability to
follow the law are favored over detailed questions about Biblical concepts or doctrines.
It was held improper to ask about a jurors understanding of the Bibles teachings on the
death penalty. State v. Mitchell, 353 N.C. 309, 318, 543 S.E.2d 830, 836 (2001). The
Defendant, however, was allowed to ask the juror about her religious affiliation and
whether any teachings of her church would interfere with her ability to perform her duties
as a juror. In State v. Laws, 325 N.C. 81, 109, 381 S.E.2d 609, 625-626 (1989), sentence
vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990), the
trial court did not abuse its discretion by not allowing defense counsel to ask a juror
whether she believed in a literal interpretation of the Bible.

In State v. Fletcher, 354 N.C. 455, 467, 555 S.E.2d 534, 542 (2001), defense
counsel was allowed to inquire into a jurors religious affiliation and his activities with a
Bible distributing group, but the trial court properly disallowed the question, whether the
juror is a person who believes in the Biblical concept of an eye for an eye. On the
other hand, another trial court did not allow counsel to ask questions about jurors
church affiliations and the beliefs espoused by others [about the death penalty]
representing their churches. State v. Anderson, 350 N.C. 152, 171-172, 513 S.E.2d
296, 308 (1999).

Sympathy for the Defendant [or the Victim?]:
An inquiry into the sympathies of prospective jurors is part of the exercise of (the
prosecutors) right to secure an unbiased jury. State v. Anderson, 350 N.C. 152, 170-171,
513 S.E.2d 296, 307-308 (1999). (Arguably, the same right applies to the defendant.)

30
Prosecutor properly asked, Would you feel sympathy towards the defendant
simply because you would see him here in court each day? J urors may consider a
defendants demeanor in recommending a sentence. The question did not stake out
jurors so that they could not consider the defendants appearance and humanity. The
question did not address definable qualities of the defendants appearance and demeanor.
It addressed jurors feelings toward the defendant, notwithstanding his courtroom
appearance or behavior. Chapman, 359 N.C. 328, 346-347.

LIST OF CASES

Federal Courts
Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)
Eddings v Oklahoma, 455 U.S. 104 (1982)
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)
Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986)
Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)
Mumin v. Virginia, 500 U.S. 415, 111 U.S. 1899, 114 L.Ed.2d 493 (1991)
Penry v. Lynaugh, 109 S.Ct. 2934 (1988)
Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981)
Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1783, 90 L.Ed.2d 27 (1986)
Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)
Woodsen v North Carolina, 428 U.S. 280 (1976)
United States v. J ackson, 542 F.2d 403 (7th Cir. 1976)
United States v. Robinson, 475 F.2d 376 (D.C. Cir. 1973)
United States v. J ohnson, 366 F.Supp. 2d 822 (N.D. Iowa 2005)
Uttecht v. Brown, 551 U.S. 1, 127. S.Ct. 2218, 167 L.Ed.2d 1014 (2007)

North Carolina Courts
State v. Anderson, 350 N.C. 152, 513 S.E.2d 296 (1999)
State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985) (note 6-7)
State v. Ball, 344 N.C. 290, 474 S.E.2d 345 (1996)
State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994) (note 2)
State v Bond, 345 N.C. 1, 478 S.E.2d 163 (1996)
State v. Brogden, 334 N.C. 39, 430 S.E.2d 905 (1993) (notes 1-2)
State v. Burr, 341 N.C. 263, 285-86 (1995)
State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001)
State v. Chapman, 359 N.C. 328 (2005) (note 2)
State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999)
State v Clark, 319 N.C. 215 (1987)
State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994) (notes 1-4, 7-9, 19-21)
State v. Cummings, 361 N.C. 438, 457-58 (2007)
State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993)
State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989) (notes 5, 8)
State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978) (note 1)
31
State v Edwards, 27 N.C. App. 369 (1975)
State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996)
State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006)
State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1999)
State v. Fletcher, 354 N.C. 455, 555 S.E.2d 534 (2001)
State v. Garcell, 363 N.C. 10 (2009)
State v. Gell, 351 N.C. 192 (2000)
State v. Gibbs, 335 NC 1, 436 SE2d 321 (1993), cert. denied, 129 L.Ed.2d 881 (1994)
State v. Green, 336 N.C. 142, 161 (1994)
State v Hatfeld, 128 N.C. App. 294 (1998)
State v Hedgepath, 66 N.C. App. 390 (1984)
State v. Henderson, 155 N.C. App. 719, 724-727 (2003)
State v Hightower, 331 N.C. 636 (1992)
State v. Hines, 286 N.C. 377, 381-86, 211 S.E.2d 201 (1975)
State v. J ohnson, __ N.C.App. __, 706 S.E.2d. 790 (2011)
State v. J ones, 296 N.C. 495, 497-502 (1979)
State v J ones, 336 N.C. 229 (1994)
State v. J ones, 347 N.C. 193, 491 S.E.2d 641 (1997)
State v. J ones, 358 N.C. 330 (2004)
State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated on other grounds,
494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990)
State v Leonard, 295 N.C. 58 (1978)
State v. Maness, 363 N.C. 261 (2009)
State v. McKinnon, 328 N.C. 668, 675-76, 403 S.E.2d 474 (1991)
State v McKoy, 323 N.C. 1 (1988)
State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830 (2001)
State v. Murrell, 362 N.C. 375 (1008)
State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1998)
State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999)
State v. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989) (notes 1-2)
State v. Payne, 328 N.C. 377 (1991)
State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980) (note 1)
State v. Polke, 361 N.C. 65 (2006)
State v Reaves, 337 N.C. 700 (1994)
State v. Richmond, 347 N.C. 412, 424, 495 S.E.2d 677 (1998)
State v. Roberts, 135 N.C. App. 690, 522 S.E.2d 130 (1999)
State v Robinson, 339 N.C. 263 (1994)
State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986) (note 12)
State v Skipper, 337 N.C. 1 (1994)
State v. Simpson, 341 N.C. 316, 426 S.E.2d 191 (1995) (notes 1-10)
State v Smith, 328 N.C. 99 (1991)
State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992) (note 10)
State v. Teague, 134 N.C. App. 702 (1999)
State v Thomas, 294 N.C. 105 (1978)
State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), death penalty vacated,
428 U.S. 902, 49 L.Ed.2d 1206 (1976) (notes 2-10)
32
State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001)
State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973) (note 7)
State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975)
State v. Wiley, 355 N.C. 592 (2002)
State v Williams, 41 N.C. App. 287, disc. rev. denied, 297 N.C. 699 (1979)
State v Willis, 332 N.C. 151 (1992)
State v. Womble, 343 N.C. 667, 473 S.E.2d 291 (1996)

1
Jury Selection: Challenges for Cause (7-11-10)
Michael G. Howell
(919) 354-7220

Basis for Challenge for Cause. 15A-1212

(6) The juror has formed or expressed an opinion as to the guilt or innocence of the
defendant. (You may NOT ask what the opinion is.)
(8) As a matter of conscience, regardless of the facts and circumstances, the juror would
be unable to render a verdict with respect to the charge in accordance with the law
of N.C.
(9) For any other cause, the juror is unable to render a fair and impartial verdict.

GOAL for Challenge for CauseHave the juror agree that the juror:
1) has formed an opinion about guilt (or expressed an opinion),
2) would be unable to follow the law about ____, or
3) would be unable to be fair and impartial.

The STEPS to obtain a for cause challenge

1) Repeat the jurors bias or impaired position.
Use their EXACT words
My son was a cocaine addictI despise anyone ever remotely involved in it.

2) Follow up with OPEN-ENDED questions to get the juror to further explain views.
Tell me moreWhat happenedWhy?
NO leading at this point
Tell us about your sons problemHow did he get into using cocaineWhat
happenedHow is he today?

3) Acknowledge the validity of the jurors position and compare it to other jurors
Ira calls itNormalize the impairment
Do NOT argue or be judgmentalSome empathy but NOT condescending
Recognize their sharing of a very personal experience
See if other jurors have the same or similar views
Thank you for your honesty and for sharing your personal experience about
your son. It is understandable that you feel the way you do. Does
anyone else feel the same way about people charged with selling drugs?

4) Lock the jurors biased answer into a challenge for cause basis
Switch to LEADING questions from here on
Repeat the jurors biased views and emphasize the strength of the views
If the juror tries to wiggle out or qualify the answer, strip or take away their
2
qualifier and repeat the essence of their views
Your sons struggles with cocaine has caused you to have very strong and
personal feelings against anyone charged with a drug crime.

5) Suggest how the bias or impairment might provide the grounds for challenge
First, just raise the issuedo not go for the kill
The bias may provide more than one basis for challenge [see below examples]
Use leading questions but do not be confrontational
You may have to re-validate the jurors belief and right to hold those beliefs
Your feelings about someone charged with a drug crime might affect your
ability to be a neutral juror in this case?
[or your ability to presume innocenceor may make you lean toward an
opinion of guilt before the trial startsor prevent you from considering
all the evidence]

6) Get the juror to agree that their bias will affect their ability to serve
This may be trickyyou have to go from might affect to would affect
It might take several closely worded questions quantifying the effect...from
might to possible to probable to likely to substantially, etc.
You need to discuss how every case is not a right fit for every juror
Another type of case would be better for that jurora case not involving that bias
Do not argue with the jurorYou need the juror to agree with you
You may need to praise their honesty or right to hold their beliefs
Your views about someone charged with a drug crime would affect your
ability to be a neutral juror in this case?
[or your ability to presume innocenceor may make you lean toward an
opinion of guilt before the trial starts]
This should provide the basis for a challenge for cause but beware rehabilitation

7) Protect your challenged jurors answers from rehabilitation
Commend the jurors honesty and willingness to talk about this personal issue
Remind juror of appropriateness of having strong views
Lock juror in on strength of views and views are part of who they are
Reassure juror that there is nothing wrong with having views that differ
from lawyers, other jurors, or judge
from the rules about jury service
Note that the juror does not appear the type who change opinions for convenience

Make your Challenge for CAUSE
SENTENCING
VoirDire
HowtoAskLifeExperienceQuestionsonVoirDire
A.StartwithanIMPERATIVECOMMAND:
Tellusabout,Sharewithus,Describeforus
Thereasonwestartthequestionwithanimperativecommandistomakesurethatthejurorfeelsitis
properandnecessarytogiveanarrativeanswer,notjustayesorno.
B.UseaSUPERLATIVEtodescribetheexperienceyouwantthemtotalkabout:
Thebest,Theworst,Themostserious
Thereasonweaskthequestionintermsofasuperlativeistomakesurewedonotgetatrivial
experiencefromthejuror.
C.AskforaPERSONALEXPERIENCE
Thatyousaw,Thathappenedtoyou,Thatyouheardof,Thatyouknowof
Thisisthecrucialpartofthequestionwhereyouaskthejurortorelateapersonalexperience.Besure
tokeepthequestionopenended,notleading.
D.OraskforanEXPERIENCEOFAFAMILYMEMBERORSOMEONECLOSEtothejuror
Thatyouorsomeoneclosetoyousaw,Thathappenedtoyouorsomeoneyouknow
Thisgivesthejurorsthechancetorelateanexperiencethathadaneffectontheirperceptionsbutmay
nothavedirectlyhappenedtothem.Italsoletsthejurorsavoidembarrassmentbyattributingoneof
theirexperiencestosomeoneelse.
E.PUTTINGTHEQUESTIONTOGETHER
Seesamplequestions,below.
SomeSampleLifeExperienceVoirDireQuestions
A.Race
1.Tellusaboutthemostseriousincidentyoueversawwheresomeonewastreatedbadly
becauseofhisorherrace(orgender,religion,etc.).
2.Tellusabouttheworstexperienceyouorsomeoneclosetoyoueverhadbecausesomeone
stereotypedyouorsomeoneclosetoyoubecauseofyourrace(orgender,religion,etc.).
3.Tellusaboutthemostsignificantinteractionyouhaveeverhadwithapersonofadifferent
race.
4.Tellusaboutthemostdifficultsituationwhereyou,orsomeoneyouknow,stereotyped
someone,orjumpedtoaconclusionaboutthembecauseofhisorherrace(orgender,religion,etc.)and
turnedouttobewrong.
B.Alcohol/Alcoholism
1.Tellusaboutapersonyouknowwhoisawonderfulguywhensober,butchangesintoa
differentpersonwhendrunk.
2.Sharewithusasituationwhereyouorapersonyouknowofwasseriouslyaffectedbecause
someoneinthefamilywasanalcoholic.
C.SelfDefense
1.Tellmeaboutthemostserioussituationyouhaveeverseenwheresomeonehadnochoice
buttouseviolencetodefendhimselforherself(orsomeoneelse).
2.Tellusaboutthemostfrighteningexperienceyouorsomeoneclosetoyouhadwhen
threatenedbyanotherperson.
3.Tellusaboutthecraziestthingyouorsomeoneclosetoyoueverdidoutoffear.
4.Tellusaboutthebravestthingyoueversawsomeonedooutoffear.
5.Tellusaboutthebravestthingyoueversawsomeonedotoprotectanotherperson.

D.JumpingtoConclusions
1.Tellusaboutthemostseriousmistakeyouorsomeoneyouknowhasevermadebecauseyou
jumpedtoasnapconclusion.
E.FalseSuspicionorAccusation
1.Tellusaboutthemostserioustimewhenyouorsomeoneclosetoyouwasaccusedofdoing
somethingbadthatyouhadnotdone.
2.Tellusaboutthemostdifficultsituationyouwereeverin,whereitwasyourwordagainst
someoneelses,andeventhoughyouweretellingthetruth,youwereafraidthatnoonewouldbelieve
you.
3.Tellusaboutthemostseriousincidentwhereyouorsomeoneclosetoyoumistakenly
suspectedsomeoneelseofwrongdoing.
F.PoliceOfficersLying/BeingAbusive
1.Tellusabouttheworstencounteryouoranyoneclosetoyouhaseverhadwithalaw
enforcementofficer.
2.Tellusaboutthemostseriousexperienceyouorafamilymemberorfriendhadwithapublic
officialwhowasabusinghisauthority.
3.Tellusaboutthemostseriousincidentyouknowofwheresomeonetoldalie,notfor
personalgain,butbecauseheorshethoughtitwouldultimatelybringaboutafairresult.
G.Lying
1.Tellusabouttheworstproblemyoueverhadwithsomeonewhowasaliar.
2.Tellusaboutthemostserioustimethatyouorsomeoneyouknowtoldalietogetoutof
trouble.
3.Tellusaboutthemostserioustimethatyouorsomeoneyouknowtoldalieoutoffear.
4.Tellusaboutthemostserioustimethatyouorsomeoneyouknowtoldalietoprotect
someoneelse.
5.Tellusaboutthemostserioustimethatyouorsomeoneyouknowtoldalieoutofgreed.
6.Tellusaboutthemostdifficultsituationyouwereeverinwhereyouhadtodecidewhichof
twopeopleweretellingthetruth.
7.Tellusaboutthemostseriousincidentwhereyoureallybelievedsomeonewastellingthe
truth,anditturnedoutheorshewaslying.
8.Tellusaboutthemostseriousincidentwhereyoureallybelievedsomeonewaslying,andit
turnedoutheorshewastellingthetruth.
H.PriorConvictions/Reputation
1.Tellusaboutthemostinspiringpersonyouhaveknownwhohadabadhistoryorreputation
andreallyturnedhimselfaround.
2.Tellusaboutthemostseriousmistakeyouorsomeoneclosetoyoueverymadebyjudging
someonebyhisorherreputation,whenthatreputationturnedouttobewrong.
I.Persuasion/Gullibility/HumanNature
1.Tellusaboutthemostimportanttimewhenyouwerepersuadedtobelievethatyouwere
responsibleforsomethingyoureallywerentresponsiblefor.
2.Tellusaboutthemostimportanttimewhenyouorsomeoneclosetoyouwaspersuadedto
believesomethingaboutapersonthatwasnttrue.
3.Tellusaboutthemostimportanttimewhenyouorsomeoneclosetoyouwaspersuadedto
believesomethingaboutyourselfthatwasnttrue.
J.Desperation
1.Tellusaboutthemostdangerousthingyouorsomeoneyouknowdidoutofhopelessnessor
desperation.
2.Tellusaboutthemostoutofcharacterthingyouorsomeoneyouknoweverdidoutof
hopelessnessordesperation.
3.Tellusabouttheworstthingyouorsomeoneyouknowdidoutofhopelessnessor
desperation.

HowtoLockinaChallengeforCause
Step#1.Mirrorthejurorsanswer:Soyoubelievethat....
a.Usethejurorsexactlanguage
b.Dontparaphrase
c.Dontargue
Step#2.Thenaskanopenendedquestioninvitingthejurortoexplain(noleadingquestionsatthis
point):
Tellmemoreaboutthat
Whatexperienceshaveyouhadthatmakeyoubelievethat?
Canyouexplainthatalittlemore?
Step#3.Normalizetheimpairment
a.Getotherjurorstoacknowledgethesameidea,impairment,bias,etc.
Ms.Smithfeelsthatthepolicewouldnotarrestapersonifhewerenotguilty.Doyoufeelthat
wayaswell,Mr.Barnes?
b.Dontbejudgmentalorcondemnit.
Isee.Thankyouforsharingthat,Ms.Smith.
Step#4.Nowswitchtoleadingquestionstolockinthechallengeforcause:
a.Reaffirmwherethejuroris:
Soyouwouldneedthedefendanttotestifythatheactedinselfdefensebeforeyoucould
decidethatthisshootingwasinselfdefense
b.Ifthejurortriestoweaseloutofhisimpairment,ortriestoqualifyhisbias,youmuststripawaythe
qualificationsandforcehimbackintoadmittinghispreconceivednotionasitappliestothiscase:
Q:Soyouwouldneedthedefendanttotestifythatheactedinselfdefensebeforeyoucould
decidethatthisshootingwasinselfdefense.
A:Well,ifthevictimsaiditmightbeselfdefense,oriftherewassomescientificevidencethat
showeditwasselfdefense,Iwouldntneedyourclienttotestify.
Q:Howaboutwheretherewasnoscientificevidenceatall,andwherethesupposedvictim
absolutelyinsistedthatitwasnotselfdefense.Isthatthesituationwhereyouwouldneedthe
defendanttotestifybeforefindingselfdefense?
c.Reaffirmwherethejurorisnot(i.e.,whatthelawrequires).
Anditwouldbeverydifficult,ifnotimpossible,foryoutosaythiswasselfdefenseunlessthe
defendanttestifiedthatheactedinselfdefense.
d.Getthejurortoagreethatthereisabigdifferencebetweenthesetwopositions.
Andyouwouldagreethatthereisabigdifferencebetweenacasewheresomeonetestified
thatheactedinselfdefenseandonewherethedefendantdidnttestifyatall.
e.Immunizethejurorfromrehabilitation
Itsoundstomelikeyouarethekindofpersonwhothinksbeforetheyformanopinion,and
thenwontchangethatopinionjustbecausesomeonemightwantyoutoagreewiththem.Is
thatcorrect?
Youwouldntchangeyouropinionjusttosavealittletimeandmovethisprocessalong?
Youwouldntletanyoneintimidateyouintochangingyouropinionjusttosavealittletimeand
movetheprocessalong?
Areyoucomfortableswearinganoathtofollowarule100%eventhoughitstheoppositeof
thewayyouseetheworld?
Didyouknowthatthelawisalwayssatisfiedwhenajurorgivesanhonestopinion,evenifthat
opinionmightbedifferentfromthatofthelawyersoreventhejudge?Allthelawasksisthat
yougiveyourhonestopinionandfeelings.
ARatingSystemforNonCapitalJurors
1. LEGALLYEXCLUDABLEASBIASEDFORTHEDEFENSE.Thisjuroropenlyexpressesthe
viewthathewillorcannotvoteforconviction.
2. Thisjurorovertlyexpressesviewsfavorabletoaccusedpeopleingeneral(Iseethe
policeshooting/framingtoomanypeopleinmycommunity),orfavorabletowhatyour
clientisaccusedofdoing(Idontthinkanyoneshouldgotojailformarijuana,),but
alsosaysshewillfollowthejudgesinstructionsandconvictiftheevidencewarrants.
3. Thisjurorcomesacrossastrulyopenminded.Heiswillingtoconvict,butisawareof
andconcernedwiththeeffectofaconvictionontheclientslife.Hemaybean
intelligentabstractthinker,oralessanalyticalbutcompassionate,person.Hewillbe
tolerantofandlistentotheviewsofthosehedisagreeswith.
4. Moderatelyproprosecution.Thisjurorbelievesthatcrimeisaseriousproblemand
generallythinksthepolicedoagoodjob.Shedoesnot,however,haveanyparticular
axetogrindconcerningyourclientorthekindofcrimeyourclientisaccusedof
committing.Shewantstobesureofguiltbeforeconvictingandcanrecount
experiences/storiesofsomeonebeingfalselyaccusedaboutaseriousmatter.
5. Proprosecution.Thisjurornotonlybelievesthatcrimeisaseriousproblem,buthasa
personalexperience,connection,orbeliefthatgiveshimanaxetogrindconcerning
yourclientorthekindofcrimeyourclientisaccusedofcommitting.Often,shewillhave
hadverylittlepersonalcontactwithmembersofyourclientsracialorethnicgroupand,
ifshehashadcontact,sherecallsitinthecontextofanegativeexperience.Thisjuroris
oftenafraid:afraidofcrime,afraidofpeopleofdifferentracesandbackgrounds,afraid
ofpoorpeople.Itisimportanttogetthesejurorstalkingabouttheirexperiences.They
willoftensaysomethingthatestablishesachallengeforcause.
6. Veryproprosecution.Thisjurorisaversionof#5onsteroids.Shenotonlybelieves
crimeisaveryseriousproblem,buttalksaggressivelyabouttheneedtodosomething
aboutit.Shespeaksincoptalk(asderivedfromtelevision)andspeaksingeneralterms
abouttheimportanceofholdingpeopleresponsiblefortheiractions.Thesejurorsmay
alsoassociatethemselves(atleastfiguratively,sometimesliterally)withlaw
enforcementissues,institution,andpeople.Theymaygettheirnewsandinformation
fromrightwingtalkradioandmayblamespecificclassesofpeople(liberals,minorities)
forproblemsofcrimeandlawlessness.
LEGALLYEXCLUDABLEASBIASEDFORTHESTATE.Thisjuroreitheropenlyexpressestheview
thathewillvoteforconvictionorwillnotfollowthejudgesinstructions;orhassomefactual
characteristicthatmakeshimautomaticallydisqualified(involvedwiththeprosecutionorpolice
investigationofthiscase,etc.).
PRESERVINGTHERECORD
PRESERVING ERROR FOR APPEAL: A CHECKLIST
Staples Hughes, Appellate Defender
New Felony Defender Training, School of Government, Chapel Hill, February 10, 2012
T H E B I G P I C T U R E

PRESERVING THE RECORD FOR APPEAL IS PART OF YOUR JOB
AS TRIAL COUNSEL. IT IS PART OF THE DUTY OF LOYALTY AND
COMPETENCE YOU OWE YOUR CLIENT.
1. Common misapprehensions.
A. Well save that for appeal. NO. WRONG.
B. They can raise that in an MAR. NO, NOT IF YOU KNOW
ABOUT THAT.
C. They can raise that in federal court. HELL NO.

2. Why do trial counsel fail to fully preserve issues?
A. Trying cases is stressful and complex and exhausting.
B. Trial counsel may not aware of the importance of the mechanics of
fully preserving issues. Thats what this checklist is for.

3. BE PARANOID. NEVER assume that an issue is preserved as a
matter of law. It almost certainly isnt.

4. Preservation is MORE important in tough cases. The appellate
courts are not going to cut your client a break because the stakes are
high.

5. ABLE TO WRITE DOWN YOUR THEORY OF THE CASE IN
ONE PAGE? NO? THEN YOU ARENT READY FOR TRIAL.
Too basic or even silly? You will discover the strengths and expose the
weaknesses in your case (and will be better prepared to preserve error).

2
FUNDAMENTAL PRINCIPLES FOR PRESERVING
EVIDENTIARY ISSUES

I. You have to object or make a request.
A. An objection or request must be timely.
B. Specific grounds must be articulated in some fashion.
Just Objection wont do. Just Because its admissible wont
do. More below.
C. If the answer to the objectionable question is inadmissible for
additional reasons, you have to object on the additional grounds
(see below re: motion to strike).
D. You must comply with procedural requirements (like written, in
the case of jury instructions).
E. You must reassert the objection or request consistently when the
same or a similar issue comes up. THIS IS A COMMON
PROBLEM. You cannot give up on the objection, or we lose it
on appeal. Even if the judge says you dont have to, you have to.
F. You must renew before the jury an objection to a ruling on pre-trial
motion or issue. This includes rulings on motions in limine and
suppression motions. You should renew, outside the jurys
presence, all requests to admit evidence previously excluded by
rulings on the prosecutions motions in limine.
G. Forget Evidence Rule 103(a) [last paragraph]. State v. Tutt, 615
S.E.2d 688 (2005) (rule violates N.C. Constitution).
H. No objection at trial = plain error or ex mero motu or, if we are
lucky, some equivalent impossible standard of review on appeal =
client loses. DOA (dead on appeal).

II. Why stating the grounds REALLY MATTERS.
A. A general objection to the prosecutions evidence, overruled, is no
good unless the evidence wasnt admissible for any reason.
B. A specific objection, overruled, is no good if you miss another
objection for admission of the evidence.
C. If you do not articulate a specific ground for admissibility of
defense evidence that is excluded, we lose that ground on appeal.

3
III. If the states objection is sustained, you have to make an offer of
proof to show what you wanted to do.
A. Dont rely on the context to make the record.
B. Dont rely on your own summary unless you have to, that is, unless
the judge makes you summarize (object to that restriction), or
unless there is some other good reason to summarize (like the
witness was taken to the hospital with a suspected heart attack
when the judge wouldnt let him testify).
C. Best: get the witness to testify out of the jurys presence.
D. If the court shuts you down: Your Honor, we want the record to
reflect that we tried to make an offer of proof concerning the
excluded testimony [or evidence] [or argument]. (GREAT issue).
E. If the court tells you to make your offer of proof later (e.g. when
we recess for lunch), remember that the burdens on YOU to
bring it to the courts attention again.
F. State that the exclusion of the evidence violates whatever evidence
rule or doctrine is in play, and the defendants right to present a
defense under the Fifth, Sixth, Eighth, and Fourteenth
Amendments. If you do not state the constitutional basis for
admissibility, we cannot argue that basis on appeal (see V, just
below).

IV. You Have To Get A Ruling on Your Objection. If you dont insist on
a ruling, your client will have no issue on appeal. Keep a list going of the
things you have to do to preserve your objections, e.g. if the judge says
you can put something on the record at a later time, make a note.

V. CONSTITUTIONALIZE!
A. Substantive issues and the prejudice standard are at stake.
B. Non-constitutional: we have to show a reasonable possibility of a
different result.
C. Constitutional: the state has to show harmlessness beyond a
reasonable doubt.
D. If you dont raise it, we cant argue it on appeal.
E. NEVER MAKE AN OBJECTION THAT DOES NOT STATE A
CONSTITUTIONAL GROUND (more on this later).

4
VI. Limiting Instructions Are Potentially Crucial.
A. A limiting instruction restricts the legal relevance and use of
evidence.
B. A request for a limiting instruction is not an empty exercise
potentially significant for sufficiency and closing argument.
C. If you dont request a limiting instruction, the evidence can be used
for any purpose (think about corroborative statements).
D. And in that vein, make specific motions to excise non-
corroborative or otherwise objectionable portions of purportedly
corroborative statements.

VII. Motions to Strike are Potentially Crucial.
A. If the prosecutors question was OK, but the answer was
objectionable you must move to strike (Move to strike the
answer.) or we cannot raise the issue on appeal (if the court
denies the motion to strike).
B. If the court sustains your objection, but the witness answers
anyway, you must move to strike, or we lose the issue on appeal
(and may have a good issue if the judge denies the motion to
strike).
C. Be alert for the question that itself was objectionable. Object as
soon as it is clear that the question is objectionable.
D. You have to decide whether a cautionary instruction does more
harm than good.

VIII. Even if your objection was sustained and your motion to strike was
granted, if what the jury heard was sufficiently catastrophic, ask that
the jury be excused and move for a mistrial, asserting that the
damage cannot be undone and is a violation of constitutional rights.

IX. When your objection is overruled, and what the jury heard was
sufficiently catastrophic, also move for a mistrial.

5

PRESERVING OTHER ISSUES BEFORE (AND MAYBE DURING)
CLOSING ARGUMENT

I. Jury Instructions
A. Requests must be in writing. Write out what you want the judge to
say. If its in writing, its preserved if the judge refuses to give it.
B. If its a pattern instruction, submit the request in writing, quoting
the text of the pattern instruction.
C. Oral requests are void. Oral requests are void. Oral requests are
void.
D. If you know something objectionable is coming, make your
objection in writing. If not, an oral objection during the charge
conference is sufficient to preserve the issue.
E. Insist that the judge commit in writing to the precise words he or
she is going to use so you can have an adequate opportunity to
lodge specific objections.

II. When something non-verbal and prejudicial happens in the
courtroom, put it on the record, and move for whatever corrective
action is appropriate.
A. What needs to be stated for the record, or filed with the clerk, or
put into evidence outside the presence of the jury so that someone
reading the transcript and looking at the court file will understand?
B. Displays of emotion by spectators.
C. Actions of the prosecutor (e.g. yelling on cross, pointing at a
particular juror in argument, intimidation of a witness when
standing at the witness stand).
D. Shackling of the client, particularly if the court refuses a hearing
on necessity.
E. Etc. etc. etc. etc. etc.

III. State on the record with the jury absent what happened at significant
bench conferences.

6
IV. If something bad happens outside the courtroom (prejudicial contact
with jurors, for instance), insist on an evidentiary hearing. If the
judge denies an evidentiary hearing, put on the record your
summary of the facts you know. Consider moving for a mistrial if
whatever happened cannot be cured by a less drastic remedy.

V. Get Powerpoint presentations by the prosecution in the record
(copies of the slides and copies of the software). Get a picture of
other visual aids used by the prosecution in the record. Get copies of
audio and video record filed with the clerk of court. If possible,
make indices of the portions played before the jury if the whole
recording isnt played.

VI. MOVE TO DISMISS AT THE END OF THE EVIDENCE ON THE
GROUND THAT THE EVIDENCE IS INSUFFICIENT,
WHETHER THATS AT THE END OF STATES EVIDENCE OR
YOUR EVIDENCE OR THE STATES REBUTTAL, ETC. WHEN
ALL THE EVIDENCE IS IN, MOVE TO DISMISS. EVERY
TIME. Make a specifc argument if appropriate, but always add or begin
with, The defendant moves that the evidence was insufficient on every
element of the offense in violation of the Sixth and Fourteenth
Amendments.

VII. Jury Selection: Trial Strategy Comes First
A. Fight tooth and nail for the questions you want to ask.
B. Constitutionalize the adverse rulings.
C. Under current law, restrictions on questioning are not preserved
unless you exhaust peremptory challenges.
D. Dont worry about the current law dont exhaust peremptory
challenges to preserve the issue if you will lose good jurors or open
yourself up to bad prospective jurors.
E. Dont exhaust peremptories to preserve a denied cause challenge if
you will lose a good juror or open yourself up to bad prospective
jurors.
7
F. Preserving the denied cause challenge:
1. You must peremptorily excuse the juror unless you are already
out of peremptory challenges.
2. If you are out of peremptory challenges when you make the
cause challenge, state on the record that you would excuse the
juror if you had any peremptory challenges left (probably not
necessary, but a nice touch).
3. If you are not out of peremptories, again, you must excuse the
juror.
4. When you exhaust peremptories, you must renew the cause
challenge and have it denied.

VIII. Batson
A. The race and gender of every prospective juror must be in the
record.
B. Questionnaires can be the vehicle, but you must make them a part
of the record.
C. Object if the judge does not find a prima facie case.
D. If the court finds a prima facie case or asks the prosecutor for an
explanation or the prosecutor volunteers an explanation, ask for an
opportunity to rebut.
E. Renew previous objections when making subsequent objections.
F. Renew the objections at the end of jury selection.
G. Read State v. Barden, 362 N.C. 277, 279-80, 658 S.E.2d 654
(2008), the core of which is as follows:
On remand, a judge presiding over a criminal session shall
consider the voir dire responses of prospective juror Baggett
and those of Teresa Birch, a white woman seated on
defendant's jury, in light of Snyder v. Louisiana, 552 U.S. ___,
128 S.Ct. 1203, L. Ed. 2d (2008), Rice v. Collins, 546 U.S. 333,
163 L. Ed. 2d 824 (2006), and Miller-El v. Dretke, 545 U.S. 231,
162 L. Ed. 2d 196 (2005), cases decided after defendant's prior
Batson hearing. The State shall have an opportunity to offer
race-neutral reasons for striking juror Baggett while seating
juror Birch. The court should determine whether these
8
explanations are race-neutral under the framework set forth in
these United States Supreme Court decisions, which were not
available to it at the time of the 2003 hearing. If the court
upholds the strikes after this new hearing under Batson in light
of Snyder, Rice, and Miller-El, the defendant's sentence will
stand. If not, he is entitled to a new trial.
H. The big point is that the courts have now proclaimed comparative
analysis of the prosecutors exercise of a peremptory against a
black juror when a very similar white juror was not struck is a very
relevant part of the analysis.

IX. Get times in the record, e.g.:
A. How long did jurors deliberate, accounting for recesses,
reinstruction, lunch, etc.? (always get this)
B. How long did jurors take looking at prejudicial photographs?
C. Even how long did a witness sit in silence after you posed the
crucial question?

X. Get into the record jury notes and communications with the judge.

XI. Use jury selection to let jurors know the lawyers may be objecting
during the trial.
A. They have all watched TV.
B. If you are doing your job, most of them will like you.
C. They can stand some drama.

XII. OBJECT TO IMPROPER JURY ARGUMENT!
A. Appellate counsel with some frequency read objectionable closing
argument of prosecutors where there is no objection by trial
counsel. Object to bad argument. Object Object Object.
B. Although he did not object at the time, defendant now argues
that the argument by the prosecutor was grossly improper.
Where a defendant fails to object, an appellate court reviews
the prosecutor's arguments to determine whether the
9
argument was so grossly improper that the trial court
committed reversible error in failing to intervene ex mero
motu to correct the error. Only an extreme impropriety on the
part of the prosecutor will compel this Court to hold that the
trial judge abused his discretion in not recognizing and
correcting ex mero motu an argument that defense counsel
apparently did not believe was prejudicial when originally
spoken.
[from a recent decision, which sounds like many other decisions]
C. To sum up, no objection = ex mero motu standard of review = we
lose.
D. Pre-argument motions to prohibit bad argument are fine for
whatever deterrence value they may have, but do not count on
them to preserve objections to bad argument.
E. Specifically, if the prosecutor has a reputation for improper
argument, file a motion before argument asking for a ruling
prohibiting what he does, tailored to the specific facts of the case
(e.g. name-calling, using evidence outside the purpose for which it
is admitted). Whether or not the judge denies your motion in
whole or in part, YOU MUST OBJECT DURING THE
ARGUMENT TO THOSE PARTS THAT ARE
OBJECTIONABLE. Otherwise the appellate court will hold, and
at gut level feel, that you have waived the argument.

XIII. RECORD have opening statements and closing arguments recorded in
every non-capital trial. G.S. 15A-1241 gives you the right to
recordation upon request. (Recordation is automatic in capital trials.)
1

15A-1241. Record of proceedings.
(a) The trial judge must require that the reporter make a true,
complete, and accurate record of all statements from the bench and all
other proceedings except:
(1) Selection of the jury in noncapital cases;

1
I realize that this checklist is prepared for use in capital trials, but the principles articulated in it are applicable to all
criminal trials. Get jury selection and arguments recorded in all criminal trials. It may make the difference between
winning and losing on appeal.
10
(2) Opening statements and final arguments of counsel to the
jury; and
(3) Arguments of counsel on questions of law.
(b) Upon motion of any party or on the judge's own motion,
proceedings excepted under subdivisions (1) and (2) of
subsection (a) must be recorded. The motion for recordation
of jury arguments must be made before the commencement of
any argument and if one argument is recorded all must be.
Upon suggestion of improper argument, when no recordation
has been requested or ordered, the judge in his discretion may
require the remainder to be recorded.
......
(emphasis added)

A. If necessary, change the culture in your jurisdiction by asking for
recordation of argument in every case.
B. Record because it may be a deterrent, sometimes.
C. Record because it is absolutely crucial to preservation of prosecutorial
misconduct in closing argument, and to full appellate presentation of
other issues.
D. Do not decide to get recordation in the middle of argument when you
hear something bad reconstruction is a mess and may prejudice
your client if you get fact-found away by the judge.

XIV. LISTEN. You will be emotionally and physically drained at the end of
the trial, but you cannot relax. You have to be focused on what the
prosecutor is saying. TAKE NOTES DURING CLOSING
ARGUMENT TO KEEP YOU FOCUSED.
Further, if the prosecutor is doing something objectionable, for instance
getting up in the defendants face, you must object and state for the
record what happened.

11
XV. What are you listening for? What follows are general categories of
objectionable argument.
A. Something that wasnt in evidence. DA just makes it up or talks
about evidence that was excluded outside the presence of the jury.
B. Jail conditions: televisions, weight rooms, three hots and a cot at
taxpayer expense. This argument is likely not supported by
evidence and deprives the defense of the opportunity to confront
such argument with evidence of the reality of life imprisonment
without parole. If the argument is not sustained, ask off the record
for a recess and to reopen the evidence to present an accurate
picture of life imprisonment without parole.
C. Arguing evidence that was struck or to which an objection was s
sustained.
D. Any comment on the defendants failure to testify, particularly
cast as a right that the defendant has that the jury should not hold
against him.
E. Any comment based on assertion of a privilege or constitutional
right (e.g. marital privilege [Wheres his wife if he didnt do it.
Why didnt she testify?]; right to silence [Dont you know if he
wont there, he would have told the police about this silly alibi.];
again, the testimonial privilege (Now, the defendant has the right
not to testify.)
F. The DAs personal opinion (I think he was lying. I dont
believe a word of what he said.). In particular, watch out for,
This is the worst case that has ever come before a jury in this
county.
G. Name calling and mud-slinging. (Animal. Liar. Not a
human being. Child of Satan. S.O.B.) Etc. etc. etc.
H. References and comparisons to historic monsters (Hes the same
as Hitler.), or monstrous historical events (Oklahoma City,
Columbine. ).
I. Evidence argued for a purpose outside the basis for its admission
into evidence. The classic is arguing a conviction admitted for
impeachment as character evidence (Anyone convicted of
breaking into another persons house is the same kind of person
that would kill them once there are in there.).
12
J. The community demands that you convict this defendant, and
similar arguments that society demands a conviction because of a
generalized problem (gang violence, domestic violence).
K. Unsupported assertions of characteristics of a class of cases (In
the penalty phase of a capital case, they always put on the mama to
tell us what a bad, bad man daddy was.).
L. Guilt based on previous proceedings (arrest, probable cause
hearing, grand jury proceedings, prosecutors decision to try the
case).
M. The guilt or guilty plea of a co-defendant as evidence of guilt of
the defendant on trial.
N. Arguing the facts of appellate decisions (usually OK to argue and
quote relevant statutes and case law).
O. Intimations that appellate review will fix any mistakes the jury
makes.
P. Intimations that the judge wouldnt have let evidence in unless it
was trustworthy.
Q. Addressing jurors personally (Ms. Adams, can you put him where
he belongs? Mr. Smith can put him where he belongs? etc etc
R. It could have been you, Mr. Adams, or It could have been any
one of you, i.e. putting jurors in the place of the victim.
S. Personal attacks on defense counsels integrity or veracity.
T. Argument based on ethnicity (Welcome to America, Mr.
Hernandez.) or economic status (You are paying for his public
defender, folks.) or any other general characterization based on
some group classification.
U. In particular, watch out for argument about experts being paid for
with the jurors and other citizens taxes.
V. GENERALLY, IF IT SEEMS UNFAIR OR WRONG OR
VERY FAR OUT THERE, IT PROBABLY IS.

13
XVI. OBJECT TO IMPROPER ARGUMENT. But do not object unless
you think the argument is improper. You cede the high ground and
violate several ethical directives if you object to closing argument in bad
faith. Be attentive; dont be stupid. Leave the misconduct to the
prosecutor.

XVII. If you think objecting to closing argument will alienate the jury, drop that
thought. Most jurors are probably going to like you. They all watch TV
and enjoy some drama in the courtroom. They will just think you are
being a lawyer. If your objection is sustained, the DA may look like an
ass. If the judge overrules your objection in a nasty way and you have
maintained the high ground, the jury may think hes an ass and count that
in favor of your client. If you object and the client is convicted, you have
preserved the error for appeal.
A. Object as specifically as the judge will let you, e.g.:
1. Objection, not in evidence, due process.
2. Objection, personal opinion, due process.
3. Objection to the inflammatory argument, due process.
B. If the judge indicates the he or she doesnt want you to make a
specific objection, fine, or if you cant articulate exactly why the
argument is improper, keep a list going, and after argument is over
and before the jury is instructed, ask for a hearing to flesh out the
basis for your objection. The delay may give you a better
opportunity to fully articulate your objection. Even if you make a
specific objection, you may be able to sharpen it in such a hearing.
C. In this hearing, always constitutionalize. State specifically that
you contend that the improper argument violated your clients
right to a fair trial and to due process of law under the sixth and
fourteenth amendments. In the penalty phase, in addition, state
that the argument violated your clients eighth amendment right to
a reliable capital sentencing proceeding.
D. Move for a mistrial as appropriate, but only if you want one.

14
SOME SUGGESTIONS FOR PRESERVING SPECIFIC GROUNDS,
AND, IN PARTICULAR, CONSTITUTIONAL GROUNDS
These suggestions are different strategies to try to make preservation as
efficient as possible. Some judges will make things difficult. The important
thing is that you achieve the goal of full preservation.
I. The first time you encounter a particular category of objectionable
evidence that has not been the subject of a motion to suppress or motion
in limine, consider asking to be heard outside the jury on a matter of
law. If the court rules against you after you have fully argued the
grounds, then after that state the grounds in summary fashion, e.g.:
Objection: relevance, due process, hearsay, confrontation.

II. What if the judge yells at you for making specific objections before
the jury, for example: Objection, relevance, hearsay,
confrontation.
A. Keeping it up and letting him or her yell and perhaps find you in
contempt is an option, but probably not a good option. Requesting
that the judge declare that he or she will find you in contempt if
you keep it up is an option. The judge will either say you will be
in contempt, and then you are good shape, or will back off.
B. Consider broaching the issue pre-trial, and explaining the necessity
to make specific objections.
C. The judge cannot relieve you of the necessity to make specific
objections.
D. If the judge prohibits you from making specific objections in the
presence of the jury, you still have to make them outside the
presence of the jury. Do this at the earliest opportunity after the
ruling in question, stating all grounds. Pair objections as suggested
below.

III. What if the judge says, Fine, make your specific objections???
A. Make them. Associate non-constitutional bases with constitutional
bases the most common is Hearsay Confrontation. The most
15
common associations are laid out on the last pages of this
manuscript.
B. State for the record in a written pre-trial notice that by
confrontation, for example, you mean the right conferred by the
sixth and fourteenth amendments, and by article I, 23 of the N.C.
Constitution.
C. Such a notice does NOT relieve you of the necessity to make
specific objections.
D. What about something that comes in as the result of the denial of a
motion to suppress or motion in limine? Simply Renew the
pretrial motion on the stated grounds, assuming that the pretrial
motion stated all grounds. State applicable additional grounds not
specified in a motion in limine. AND, renew the objection to each
question that elicits testimony that was the subject of a pre-trial
motion.

IV. What about line objections?
A. WATCH OUT. POTENTIAL TRAP.
B. There is case law that throws doubt on the validity of line
objections in criminal cases.
C. Even assuming that line objections are valid, you must state
specific grounds up front, just as with any objection.
D. Even assuming that line objections are valid, and that you state
specific grounds up front, any objectionable testimony outside
the line objection (that is, that is objectionable for a different or
additional reason than initially stated) must be the subject of an
additional objection.
E. For instance, if the line objection is hearsay/confrontation, and
something that is completely irrelevant and prejudicial comes in
during what otherwise is within the parameters of the line, you
have not preserved the relevancy bases for objecting, or we lose
that ground on appeal.
F. A line objection made at the time of the denial of a pre-trial
motion IS CLEARLY NO GOOD. You must make the
objection at trial.
G. All things considered, dont rely on line objections.

16

COMMON RELATED GROUNDS FOR TRIAL OBJECTIONS
I. If something is unfair, it violates due process of law. Anything admitted
in violation of a North Carolina Rule of Evidence, or statute, or case law is
unfair.
What you say in your pre-trial notice:
When defense counsel state due process, as the basis for an objection,
what is meant is a violation of the right to fundamental fairness and due process of
law guaranteed by the 5
th
and 14
th
amendments, and art. I, 19 of the N.C.
Constitution.
What you say when you object, whether or not you have filed a pre-trial
notice: Objection, (articulate North Carolina law violation) and due process.

Example: Objection, Evidence Rule 608(b) and due process.
II. If something is unreliable or irrelevant in the penalty phase, it violates
the prohibition on cruel and unusual punishment.
When defense counsel state eighth amendment, what is meant is a
violation of the prohibition against cruel and unusual punishment guaranteed by
the eighth amendment and art. I, 27 of the N.C. Constitution.

What you say when you object: Objection, 8
th
Amendment.
III. Include in all hearsay objections a confrontation objection.
When defense counsel state hearsay and confrontation, what is meant is a
violation of the prohibition against inadmissible hearsay and of the right to
confront adverse evidence guaranteed by the sixth and fourteenth amendments and
art. I, 23 of the N.C. Constitution.
What you say when you object: Objection, hearsay and confrontation.
IV. Any impairment of your right to put on evidence or argue admitted
evidence for a permissible purpose:
When defense counsel state right to a defense, what is meant is a
violation of the right to the assistance of counsel, the right to due process of law,
17
and the right to confront adverse evidence guaranteed by the fifth, sixth, eighth,
and fourteenth amendments and art. I, 19, 23, and 27 of the N.C. Constitution.
th
, 6
th
and 14
th
Amendments
or Objection, right to defense.
V. Anything that impairs fair jury selection or the impartiality or bias of
jurors (including taints outside the courtroom from exposure to media, to other
information outside the evidence, or to prejudicial opinions of other persons):
When defense counsel state right to fair jury selection or impartial jury,
what is meant is a violation of the right to a fair and impartial jury guaranteed by
the sixth and fourteenth amendments and art. I, 19 and 24 of the N.C.
Constitution.
th
and 14
th
Amendments or
Right to impartial Jury or Right to fair jury Selection.

VIII. Include due process in the objection to violation of any rule of evidence
other than confrontation, including objections on relevance grounds or Rule 403
grounds.

Again, Never Make An Objection That Does Not Also State A Constitutional
Ground.

SUGGESTED TEXT FOR A PRE-TRIAL NOTICE
ON DEFENSE OBJECTIONS

Following the caption of your case:

DEFENSE NOTICE OF BASIS FOR PRE-TRIAL OBJECTIONS
The defendant through counsel gives notice that the following is the basis for
objections that counsel may make in summary fashion during trial:

1. When defense counsel state due process, as the basis for an objection,
what is meant is a violation of the right to fundamental fairness and due process of
18
law guaranteed by the 5
th
and 14
th
amendments, and art. I, 19 of the N.C.
Constitution.

2. When defense counsel state hearsay and confrontation, what is meant is a
violation of the prohibition against inadmissible hearsay and of the right to
confront adverse evidence guaranteed by the sixth and fourteenth amendments and
art. I, 23 of the N.C. Constitution.

3. When defense counsel state right to defense, what is meant is a violation
of the right to the assistance of counsel, the right to due process of law, and the
right to confront adverse evidence guaranteed by the fifth, sixth, eighth, and
fourteenth amendments and art. I, 19, 23, and 27 of the N.C. Constitution.

4. When defense counsel state right to fair jury selection or right to
impartial jury, what is meant is a violation of the right to a fair and impartial jury
guaranteed by the sixth and fourteenth amendments and art. I, 19 and 24 of the
N.C. Constitution.
PRESERVING THE RECORD ON APPEAL

Originally Presented in 2001 and Updated in 2003 by
Danielle M. Carman, Assistant Director, Office of Indigent Defense Services
Updated for Summer 2004 New Felony Public Defender Training by
Anne M. Gomez, Assistant Appellate Defender
Updated for Spring 2006 Public Defender Conference and
Fall 2009 Mecklenburg County Public Defenders Conference & CLE Training by
J ulie R. Lewis, Assistant Public Defender

I. INTRODUCTION:
Our appellate courts are increasingly using waiver to avoid reaching the merits of
defense challenges in criminal cases.
While appellate attorneys can and do fail to preserve appellate issues, waiver most
often begins at the trial level . . . . . . . . . . .

II. BASIC PRESERVATION PRINCIPLES:
Express disagreement with what the trial court did (or did not do) and the complete
grounds for that disagreement by objection, exception, motion, request, or
otherwise.
Assert your position in a timely fashion.
Assert your position in the form required by the applicable rule or statute.
Constitutionalize your position whenever possible by explicitly asserting both
Federal and State constitutional grounds.
Re-assert your position every time the same or a substantially similar issue arises.
Obtain a ruling on your request, motion, or objection. If the judge says he or she will rule
later, make sure that he or she does so.
Make an offer of proof if your evidence is wrongly excluded.
Case Note: In State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002), the trial attorneys
preserved a number of statutory and constitutional errors. While the individual errors
may not have warranted a new trial, the Supreme Court held that, when taken as a
whole, the cumulative preserved errors deprived defendant of his due process right to a
fair trial. Id. at 254, 559 S.E.2d at 768. The Courts opinion in Canady demonstrates
the benefit of lodging timely, specific, and frequent objections.

2
III. PRE-TRIAL:
A. Short-Form Indictments:
N.C. Gen. Stat. 15-144, 15-144.1, and 15-144.2 permit short-form indictments in first-
degree murder, first-degree rape, and first-degree sexual offense cases. In all cases
utilizing such a short-form indictment, as well as any cases where the indictment does not
in fact set forth all elements of the offense, you should move to dismiss the indictment on
the ground that it violates the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. See Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999),
and Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435 (2000). In capital cases, you
should move to strike the death penalty from consideration because no aggravating
factors are alleged in the indictment. See Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d
556 (2002) (aggravating factors are elements of a capital offense and must be found by
the jury).
Make a motion for a bill of particulars asking the State to identify the degrees of the
offense (e.g., first-degree vs. second-degree) and the theories (e.g., premeditation and
deliberation vs. felony murder). If the judge denies the motion, the State cannot then
argue on appeal that the defense attorney waived any opportunity to obtain adequate
notice of the charge.
In numerous cases, the Supreme Court of North Carolina has rejected the argument that
short-form first-degree murder indictments that do not allege premeditation and
deliberation violate Apprendi. The Supreme Court has also rejected a challenge to the
failure of an indictment to allege aggravating factors in a capital case. See State v. Hunt,
357 N.C. 257, 582 S.E.2d 593 (2003). Regardless of the Courts decisions, you should
still preserve the issue for federal review.
For preservation purposes, you should also move to dismiss under Article I, 22 and 23
of the North Carolina Constitution. Argue two bases for the motion: (1) that the
indictment does not give the trial court jurisdiction to try the defendant or to enter a
judgment; and (2) that the indictment does not give the defendant adequate notice of the
charge.

B. Miscellaneous:
If your ex parte motion for expert assistance is denied, make sure you get the substance
of your motion and the trial judges order on the record.
If you believe that your clients right to presence has been violated by an ex parte
contact, find a way to have the record reflect that the contact occurred.

IV. GUILTY PLEAS:
The ONLY pretrial motion that you can preserve for appeal after a guilty plea is the
denial of a motion to suppress. N.C. Gen. Stat. 15A-979(b); State v. Smith, --- N.C.
3
App. ---, 668 S.E.2d 612, 614, disc. review denied, No. 534P08, 2009 N.C. LEXIS 764
(N.C. August 27, 2009). To preserve this error, you must notify the State and the
trial court during plea negotiations of your intention to appeal the denial of the
motion, or the right to do so is waived by the guilty plea. State v. Tew, 326 N.C. 732,
735, 392 S.E.2d 603, 605 (1990); State v. Brown, 142 N.C. App. 491, 492, 543 S.E.2d
192, 192 (2001). The best way to do this is to put it in writing.

V. COMPLETE RECORDATION:
In criminal cases, the trial judge must require the court reporter to record all proceedings
except non-capital jury selection, opening and closing statements to the jury, and legal
arguments of the attorneys. See N.C. Gen. Stat. 15A-1241(a).
However, you should move to have everything recorded under 15A-1241(b)!! Upon
motion, the court reporter must record all proceedings. You should also ensure that the
court reporter is actually present and recording at all stages of trial.
If a bench conference is not recorded, ask the trial judge to reproduce it for the record and
ensure that all of your objections are in the record.
If something non-verbal happens at trial, ask to have the record reflect what happened.
e.g.: In State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), the trial attorneys
should have asked to have the record reflect that the prosecutor pointed a gun at the
only African American juror during closing arguments.
e.g.: If your client is shackled without the necessary hearing and factual findings
required by N.C. Gen. Stat. 15A-1031, and the jury saw the shackles, ask to have
the record reflect that fact. Also describe for the record what type of restraint was
being used.

VI. JURY SELECTION:
A. Preserving Your Right to Ask a Question on Voir Dire:
e.g.: In a case involving an interracial crime, you want to ask prospective jurors
questions about their views on interracial dating. However, the trial court sustains the
States objections to your questions.
N.C. Gen. Stat. 15-1212(9) provides that [a] challenge for cause to an individual juror
may be made by any party on the ground that the juror . . . [f]or any other cause is unable
to render a fair and impartial verdict. This section allows a statutory challenge for cause
based on juror bias and, thus, should give a defendant a statutory right to explore possible
sources of bias.
In addition, you should try to constitutionalize your right to ask the question. See, e.g.,
Turner v. Murray, 476 U.S. 28, 90 L. Ed. 2d 27 (1986) (right to impartial jury under the
Fifth, Sixth, and Fourteenth Amendments guarantees a capital defendant accused of
4
interracial crime the right to question prospective jurors about racial bias; violation of
right requires death sentence to be vacated).
To fully preserve any error based on curtailed defense questioning during voir dire, you
should submit a written motion listing the questions you want to ask and obtain a ruling
on the record. You also need to exhaust your peremptory challenges. See State v.
Fullwood, 343 N.C. 725, 734-35, 472 S.E.2d 883, 888 (1996).

B. Preserving Your Denied Motion to Excuse for Cause:
State clearly and completely the grounds for your challenge for cause. If the trial court
denies your challenge, you must use a peremptory to excuse that juror unless you have
already exhausted all peremptories.
In addition, N.C. Gen. Stat. 15A-1214(h) and (i) require that you then: (1) exhaust all
peremptories; (2) renew your challenge for cause; and (3) have your renewed
challenge denied. See State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993)
(ordering a new trial where defendant satisfied requirements of 15A-1214(h)); State v.
Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992) (same). This procedure is mandatory
and must be precisely followed or the error is waived on appeal. State v. Garcell, 363
N.C. 10, 678 S.E.2d 618 (2009).

C. Batson Error:
Establish the races of all prospective jurors for the record: File a pre-trial motion
asking the trial court to ensure that the races of prospective jurors are recorded by (1) the
judge inquiring and making findings for the record, or (2) the judge requiring the parties
to stipulate to jurors races as selection proceeds. If the court will not permit any other
way, ask each juror to put his or her race on the record orally or by questionnaire.
If you use juror questionnaires, move to have them admitted into evidence and
made part of the record. If the questionnaires are left in your possession, save them for
the appellate attorney.
Object every time the prosecutor excuses a juror for even arguably racial reasons. See
State v. Smith, 351 N.C. 251, 524 S.E.2d 28 (2000). If you are prepared to make a prima
facie showing, ask the trial court for an opportunity to present evidence. The court is
required to honor this request. See State v. Green, 324 N.C. 238, 376 S.E.2d 727 (1989).
If the trial court declines to find a prima facie case, object. If the court asks the
prosecutor to offer race-neutral reasons, ask for an opportunity to rebut the prosecutors
showing.
Remember that Batson applies to gender-based challenges as well!

VII. EVIDENTIARY RULINGS:
If you do not make timely and proper objections at trial, erroneous evidentiary rulings
will only be reviewed for plain error an extremely difficult standard to meet. On
5
appeal, the defendant will have to show the error was so fundamental that it denied him a
fair trial or had a probable impact on the jurys verdict. See State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983).

A. Objecting to the States Evidence:
Make timely objections. See N.C. Gen. Stat. 15A-1446(a); N.C. Gen. Stat. 8C-1,
Rule 103(a)(1); N.C. R. App. P. 10(b)(1). If the prosecutor asks a question that you think
is improper or may elicit improper testimony, enter a quick general objection. If the trial
court invites you to argue the objection or rules against you, you should follow up by
stating the basis for your objection.
A defendants general objection to the States evidence is ineffective unless
there is no proper purpose for which the evidence is admissible. See State v.
Moseley, 338 N.C. 1, 32, 449 S.E.2d 412, 431 (1994) (burden on defendant to
show no proper purpose).
If evidence is objectionable on more than one ground, every ground must be
asserted at the trial level. Failure to assert a specific ground waives that
ground on appeal. See State v. Moore, 316 N.C. 328, 334, 341 S.E.2d 733, 737
(1986); N.C. R. App. P. 10(b)(1).
If evidence is admissible for a limited purpose, object to its use for all other improper
purposes and request a limiting instruction. See State v. Stager, 329 N.C. 278, 309-10,
406 S.E.2d 876, 894 (1991). Upon request, the trial court is required to restrict such
evidence to its proper scope and to instruct the jury accordingly. See N.C. Gen. Stat.
8C-1, Rule 105.
e.g.: If the trial court rules that hearsay statements are admissible for
corroboration, ask the trial court to instruct the jury about the permissible uses of
that evidence.
If there are portions of the statements that are non-corroborative, specify those
portions and ask to have them excised.
If there are portions of the statements that are objectionable on other grounds
(e.g., inadmissible other crimes evidence), specify those portions and ask to
have them excised.
When appropriate, constitutionalize your objections. If a defendant wishes to claim
error on appeal under the Federal Constitution as well as state law, the defendant must
have raised the constitutional claim when the error occurred at trial. See State v. Rose,
339 N.C. 172, 192, 451 S.E.2d 211, 222 (1994); State v. Skipper, 337 N.C. 1, 56, 446
S.E.2d 252, 283 (1994).
e.g.: If the trial court excludes your proffered evidence, do not object solely on
state law relevance grounds. You should also cite your clients constitutional due
process right to present evidence in his defense.
e.g.: If the State offers hearsay evidence, do not object solely on state law hearsay
grounds. You should also cite the Confrontation Clause.
6
Object to any attempts by the prosecutor to admit substantive or impeachment evidence
about your clients post-Miranda exercise of his constitutional rights to remain silent and
have an attorney present. See Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976).
e.g.: If the State offers police testimony that your client refused to talk and asked
for his attorney, object.
e.g.: If the State tries to cross-examine your client about his failure to tell certain
facts to the police, object.

B. Moving to Strike the States Evidence:
If the prosecutors question was not objectionable (or if your objection to a question is
overruled and it later becomes apparent that the testimony is inadmissible) but the
witness answer was improper in form or substance, you must make a timely motion to
strike that answer. See State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975); State v.
Marine, 135 N.C. App. 279, 285, 520 S.E.2d 65, 68 (1999).
Similarly, if the trial judge sustains your objection but the witness answers anyway, you
must make a timely motion to strike the answer. See State v. Barton, 335 N.C. 696, 709,
441 S.E.2d 295, 302 (1994); State v. McAbee, 120 N.C. App. 674, 685, 463 S.E.2d 281,
286 (1995).

C. Waiving Prior Objections:
If you make a motion in limine to exclude certain evidence but then fail to object
when the evidence is actually offered and admitted at trial, the issue is not preserved
for appeal. See State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per
curiam); State v. Wynne, 329 N.C. 507, 515, 406 S.E.2d 812, 815-16 (1991). Similarly, if
your suppression motion is denied, you must renew that motion or object to the evidence
when it is introduced at trial to preserve the error. See State v. Golphin, 352 N.C. 364,
533 S.E.2d 168 (2000). You must do this even if the trial judge specifically says you
dont have to. State v. Goodman, 149 N.C. App. 57, 66, 560 S.E.2d 196, 203 (2002),
revd in part on other grounds, 357 N.C. 43, 577 S.E.2d 619 (2003).
Do NOT rely on N.C. Gen. Stat. 8C-1, Rule 103(a)(2) to preserve the issue!!!
Although the Legislature attempted to make things easier by amending Evidence Rule
103(a)(2) in 2003 to add a second sentence that states that once the trial court makes a
definitive ruling admitting or excluding evidence, either at or before trial, there is no need
to later renew the objection, do not rely on this rule. Rule 103(a)(2) has been held to be
invalid because it conflicts with Appellate Rule 10(b)(1) which has been consistently
interpreted to provide that an evidentiary ruling on a pretrial motion is not sufficient to
preserve the issue for appeal unless the defendant renews the objection during trial. See
State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007).
If you initially object but then allow the same or similar evidence to be admitted
later without objection, the issue is not preserved for appeal. See State v. Jolly, 332
N.C. 351, 361, 420 S.E.2d 661, 667 (1992). Likewise, you waive appellate review if you
fail to object at the time the testimony is first admitted, even if you object when the same
7
or similar evidence is later admitted. See State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243,
256 (2000). Bottom line: You must object each and every time the evidence is admitted.
One way to deal with this problem is to enter a standing line objection to the evidence
when it is offered at trial. See N.C. Gen. Stat. 15A-1446(d)(9) & (10); see also 1
KENNETH S. BROUN, BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE 22, at 92
(Michie Co., 6th ed. 2004) (discussing waiver and the status of line objections in North
Carolina).
To preserve a line objection, you must ask the trial courts permission to have a
standing objection to a particular line of questions. See, e.g., State v. Crawford,
344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996). In addition, you should clearly
state your grounds for the standing objection. If the court denies your request,
object to every question that is asked.
You cannot make a line objection at the time you lose your motion to
suppress or your motion in limine; you must object to the evidence at the
time it is offered. See State v. Gray, 137 N.C. App. 345, 348, 528 S.E.2d 46, 48
(2000).
If there are additional grounds for objection to a specific question within that line,
you must interpose an objection on the additional ground.
e.g.: If you have a standing line objection based on relevance and a specific
question in that line calls for hearsay, you need to interpose an additional
hearsay objection.

D. Making an Offer of Proof:
Evidence Rule 103(a)(2) provides that [e]rror may not be predicated upon a ruling
which . . . excludes evidence unless . . . the substance of the evidence was made known to
the court by offer or was apparent from the context within which questions were asked.
N.C. Gen. Stat. 15A-1446(a) provides that when evidence is excluded a record must
be made . . . in order to assert upon appeal error in the exclusion of that evidence.
Thus, if the trial court sustains the prosecutors objection and precludes you from
presenting evidence, making an argument, or asking a question, you must make an
offer of proof. For further discussion of this topic, see1 KENNETH S. BROUN, BRANDIS
& BROUN ON NORTH CAROLINA EVIDENCE 18, at 70 (Michie Co., 6th ed. 2004).
You should make your offer of proof by actually filing the documentary exhibit or
by eliciting testimony from the witness outside the presence of the jury. It is not
enough to rely on the context surrounding the question. See State v. Williams, 355 N.C.
501, 534, 565 S.E.2d 609, 629 (2002). Summarizing what the witness would have said
also may not be sufficient. See State v. Long, 113 N.C. App. 765, 768-69, 440 S.E.2d
576, 578 (1994).
If the court does not allow you to make an offer of proof, state: Defendant wants the
record to reflect that we have tried to make an offer of proof. Also state that the trial
courts failure to allow you to do so violates the defendants constitutional rights to
confrontation, to present a defense, and, if applicable, to compulsory process. It is error
8
for the court to prohibit you from making an offer of proof. State v. Silva, 304 N.C. 122,
134-36, 282 S.E.2d 449, 457 (1981).
If the court tells you to make your offer later, the burden is on you to remember and to
make sure that the offer is made.

VIII. MOTIONS TO DISMISS:
Always move to dismiss at the close of the States case. See N.C. Gen. Stat. 15-173;
N.C. Gen. Stat. 15A-1227.
Always renew your motion to dismiss at the close of all the evidence (even if you
only introduce exhibits). The defendant is barred from raising insufficiency of the
evidence on appeal if you fail to do so. See N.C. R. App. P. 10(b)(3); see also State v.
Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987) (appellate rule abrogates the contrary
provision in N.C. Gen. Stat. 15A-1446(d)(5)). Furthermore, the appellate courts will
not even review the error using the plain error standard of review if the motion is not
renewed. See State v. Freeman, 164 N.C. App. 673, 596 S.E.2d 319 (2004) (plain error
analysis only applies to jury instructions and evidentiary matters in criminal cases).
If you forget to renew your motion to dismiss at the close of all the evidence, after the
verdict you should move to dismiss based on the insufficiency of the evidence or move to
set aside the verdict as contrary to the weight of the evidence. See N.C. Gen. Stat. 15A-
1414(b). These motions are addressed to the discretion of the trial court and are
reviewable on appeal under an abuse of discretion standard. See State v. Fleming, 350
N.C. 109, 512 S.E.2d 720 (1999); State v. Batts, 303 N.C. 155, 277 S.E.2d 385 (1981).

IX. CLOSING ARGUMENTS:

Always object to improper arguments. Failure to timely object to the prosecutors
argument constitutes a waiver of the alleged error. In the absence of an objection,
appellate courts will review the prosecutors argument to determine whether it was so
grossly improper that the trial court abused its discretion in failing to intervene ex mero
motu to correct the error. State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994). This is
a much more stringent standard of review than is applied to preserved errors so it is
critically important for appellate purposes to timely object to improper statements made
by the prosecutor and to request curative instructions if the objection is sustained.

If your objection is sustained, immediately ask the judge to instruct the jury to disregard
the improper statements. You should also carefully consider whether further remedy is
necessary or whether it would serve to draw further negative attention to the comments.
If you decide that the prejudice resulting from a prosecutors improper argument was
severe and in need of further remedy, you may ask the judge to:
admonish the prosecutor to refrain from that line of argument;
require the prosecutor to retract the improper argument;
repeat the curative instruction during the jury charge; or
9
grant a mistrial.
See State Jones, 355 N.C. 117, 129, 558 S.E.2d 97, 105 (2002) (it is incumbent on trial
judge to vigilantly monitor closing arguments, to intervene as warranted, to entertain
objections, and to impose any remedies pertaining to those objections); Wilcox v. Glover
Motors, Inc., 269 N.C. 473, 153 S.E.2d 76 (1967) (listing several methods by which a
trial judge, in his or her discretion, may correct an improper argument).
The filing of a motion in limine regarding closing arguments is not sufficient, by itself, to
preserve closing argument error. Appellate Rule 10(b)(1) requires that you actually
obtain a ruling on the motion from the trial judge. See State v. Daniels, 337 N.C. 243,
275-76 n.1, 446 S.E.2d 298, 318 n.1 (1994). In addition, you should renew the motion or
object during the prosecutors closing argument.
Object to any attempts by the prosecutor to argue in closing that your clients post-
Miranda exercise of his constitutional rights to silence and counsel support an inference
of guilt. See Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976).
The Supreme Court of North Carolina has displayed an increasing willingness to find
reversible error due to improper closing arguments by prosecutors. Be vigilant to
improper arguments and object!

X. JURY INSTRUCTIONS:
Clearly and specifically object to erroneous jury instructions before the jury retires to
deliberate. See N.C. R. App. P. 10(b)(2); see also State v. Bennett, 308 N.C. 530, 302
S.E.2d 786 (1983) (appellate rule abrogates the contrary provision in N.C. Gen. Stat.
15A-1231(d)). If you do not object at trial, instructional errors will only be reviewed
for plain error an extremely difficult standard to meet. See State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983).
Submit all of your proposed jury instructions -- especially special instructions -- in
writing. See N.C. Gen. Stat. 1-181; N.C. Gen. Stat. 15A-1231(a). Requested
instructions that are refused then become a part of the record on appeal by statute. N.C.
Gen. Stat. 15A-1231(d). Then follow along on your copy as the judge instructs the
jury. J udges very often make unintentional mistakes while instructing the jury.

Submit your proposed jury instructions as early as possible so the judge will have a
chance to review them and make a ruling. Parties may submit proposed jury
instructions at the close of the evidence or at an earlier time if directed by the judge. N.C.
Gen. Stat. 15A-1231(a). Requests for special instructions must be submitted to the
judge before the judge begins to give the jury charge. N.C. Gen. Stat. 1-181(b); see also
N.C. Gen. R. Prac. Super. & Dist. Ct. 21 (providing that [i]f special instructions are
desired, they should be submitted in writing to the trial judge at or before the jury
instruction conference); State v. Long, 20 N.C. App. 91, 200 S.E.2d 825 (1973) (holding
that a request for special instruction is not timely if it is tendered after the jury retires to
deliberate). However, the judge may, in his or her discretion, consider requests for special
instructions regardless of the time they are made. N. C. Gen. Stat. 1-181(b).
10
XI. JURY DELIBERATIONS:

Before consenting to the jurys request to take an exhibit into the jury room pursuant to
N.C. Gen. Stat. 15A-1233(b), carefully consider how the jury may use the exhibit
during its deliberations and decide whether it would be in the defendants best interest to
consent. If the trial judge, without obtaining consent from all parties, sends an exhibit to
the jury room that you believe is harmful to the defendants case, object on the record in
order to ensure preservation of the issue on appeal.
Make sure that the timing of jury deliberations is made a part of the record. Lengthy or
troubled jury deliberations are an extremely helpful way to show prejudice on appeal.
Make sure that all jury notes and other communications between the judge and jury are
made a part of the record.

XII. SENTENCING:
Do not stipulate as a matter of course to the prior record level worksheet or to the
defendants prior convictions, especially if they are out-of-state convictions. The
burden is on the prosecution to prove that the defendants prior convictions exist. N.C.
Gen. Stat. 15A-1340.14(f). If they are out-of-state convictions, the State must prove
they are substantially similar to North Carolina convictions or else they must be classified
at the lowest punishment level (Class I for felonies, Class 3 for misdemeanors). N.C.
Gen. Stat. 15A-1340.14(e). If you stipulate (or fail to object when asked or agree in
any way), the State does not have to prove anything. See State v. Alexander, 359 N.C.
824, 616 S.E.2d 914 (2005). The issue will most likely be preserved if you take no
position but the safer position is to object (even if you do not wish to be heard).
Errors that occur during sentencing are supposed to be automatically preserved for
review. See N.C. Gen. Stat. 15A-1446(d)(18); State v. McQueen, 181 N.C. App. 417,
639 S.E.2d 139 (2007), appeal dismissed and disc. review denied, 361 N.C. 365, 646
S.E.2d 535 (2007); State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003) (citing
State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)). However, the Court of Appeals
has also repeatedly found that a defendant waives appellate review of a sentencing error
when he or she fails to object. See, e.g., State v. Black, --- N.C. App. ---, 678 S.E.2d 689
(2009) (right to appellate review of constitutional issue was waived because defendant
failed to raise it at the sentencing hearing); State v. Kimble, 141 N.C. App. 144, 539
S.E.2d 342 (2000) (issue regarding sufficiency of the evidence to support the finding of
aggravating factors was not properly before the Court because defendant did not object
during the sentencing hearing). To be safe, always object to errors that occur during the
sentencing hearing.
In response to the United States Supreme Court decision in Blakely v. Washington, our
legislature substantially amended the Structured Sentencing Act. Session Law 2005-145,
referred to as the Blakely bill, went into effect on J une 30, 2005 and applies to
prosecutions for all offenses committed on or after that date. It is prudent to preserve all
Blakely issues just as you would preserve other issues during a trial. This includes
11
motions to dismiss for failure to prove an aggravating factor beyond a reasonable doubt,
objections to evidence, and objections to erroneous jury instructions.
Present evidence to support mitigating factors if the evidence was not presented at trial.
E.g., Have your clients mom testify about his support system in the community. If the
mitigating factors are supported by documentary evidence, ask that the documents be
entered into evidence.
Cosponsored by the UNC School of Government &
North Carolina Office of Indigent Defense Services
Chapel Hill / February 11-12, 2010

PRESERVING THE RECORD
AND MAKING OBJECTIONS AT TRIAL:

A Win-Win Proposition for Client and Lawyer

Ira Mickenberg
Public Defender Trainer and Consultant
6 Saratoga Circle
Saratoga Springs, NY 12866
(518) 583-6730
[email protected]

I. The Prime Directive For Preserving the Record and Making Objections at Trial

WHEN IN DOUBT -- OBJECT

A. This cannot be overstated. If you do not object, you have lost -- regardless of whether you are
right or wrong about the issue. If you do object, two things can happen, and both of them leave
your client in a better position than if you were silent:

1. The objection will be sustained. Whatever you were objecting to has been excluded,
and some prejudice has been kept out of the trial. You have also seized the moral high ground
for future objections, if the prosecutor violates the judges ruling.

2. The objection will be overruled. This is not great, but at least you have preserved the
issue so that on appeal or habeas, your client will have a chance for reversal. Almost as
important, you have begun to educate the judge on the issue, which maximizes your chances of
limiting the prosecutions ability to expand the prejudice later in the trial.

B. Many lawyers are afraid to make objections because they think the court may get angry at
them for daring to object. There are two answers to this:

1. It is more important to preserve your clients right to appellate and habeas review than
it is to have the court happy with you.

2. If a judge is going to get upset with you for objecting, he or she is probably the kind of
judge who is already upset with your very existence as a defense lawyer. Its part of our job, so
we have to learn to live with it.

MYTH ALERT #1 Objecting too much will make the jurors angry:

When I took trial advocacy courses in law school, I was advised not to object too much,
because it will make the jury angry. This is nonsense for two reasons:

1. Jurors dont get angry because you are objecting. They get angry if you are
behaving like a jerk when you object. Whining, eye-rolling and other stereotypical lawyer
histrionics might offend a jury. Making your objection in an intelligent, calm, sincere and
respectful-sounding way lets the jury know you are doing your job and care about your case.

2. The law professors who keep advising you not to object have never gone to jail
because they were procedurally barred from raising a winning issue on habeas. Your client
will.
1
II. How to Prepare For Objections and Record Preservation

MYTH ALERT #2: You cant prepare for trial objections. You just have to be
very smart and very fast on your feet.
This is also nonsense. It was probably made up by a trial attorney who was invited to
teach at an advocacy seminar, and wanted to convince the audience that he was smarter and
faster than they were. Like every aspect of a trial, knowing your theory of defense, thinking
about your case critically and doing your homework in advance will allow you to make
effective objections even if you are really slow on your feet.

A. Know your theory of defense inside out. Go through the exercise of writing out your theory
of defense paragraph. Know what story you are going to tell the jury that will convince them to
return the verdict you want.

B. Then ask yourself four questions:

1. What evidence, arguments and general prejudice might the prosecutor come up with
that will hurt my theory of defense?

2. What legal objections can I make to those tactics?

3. What evidence and arguments will the prosecutor offer in support of his or her
theory of the case?

4. What legal objections can I make to the prosecutors evidence and arguments?

C. Once you have answered these four questions, take the following steps:

1. Go to the law library and research the law on those objections.

2. If you find supportive law, make copies of the relevant cases or statutes. Bring them to
court with you, and cite them if you make a motion in limine.

D. If appropriate, make a motion in limine, in writing and on the record, to obtain the
evidentiary ruling you want before trial.

E. If a motion in limine is not appropriate, bring the copies of the law you have found with you
to trial. This will guarantee that when you make the objection, you will be the only one in the
courtroom who is able to cite directly relevant law.
2

MYTH ALERT #3: You have to choose between preserving the record, and
following a good trial strategy.
Baloney. If you know your theory of defense, you will know whether an objection
advances the theory or conflicts with it. Object when it advances your theory. Dont object if
it conflicts with your theory. Just make sure you know the difference.

III. How to Make Objections

A. Whenever you anticipate a problem, consider making a motion in limine to head off the
difficulty and get an advance ruling.

B. When you are unsure whether to object, DO IT. You have far less to lose if you have an
objection overruled than if you allow the damaging evidence in without a fight.

C. Be unequivocal when you object, don't waffle.

1. RIGHT: I object.
WRONG: Excuse, me you honor, but I think that may possibly be objectionable.

2. Dont ever let the judge bully you into withdrawing an objection. If the judge goes
ballistic because you have made an objection, just make sure you get it all on the record --
including his ruling.

D. If the objection is sustained, ask for a remedy.

1. Mistrial.

2. Strike testimony.

3. Curative instruction.

E. If you realize that you have neglected to make an objection which you should have made:

1. DON'T PANIC -- but don't just forget about it.

2. Make a late objection on the record.

3. Ask for a remedy which the court can grant now.

a. Curative instruction/strike testimony.

b. Mistrial.
3
IV. If You Happen To Have A Capital Case, Remember To Make Objections On Non-Capital
Issues

NOTE: This particularly important because in many jurisdictions death penalty law is so bad that
if a reviewing court feels that an injustice is being done, you have to give the court a non-death
penalty issue on which to peg its reversal.

A. If you are objecting to the admission of evidence, raise every possible ground:

EX: If you are objecting to admission of a photo array, dont just cite your states
equivalent of Wade. You may also wish to raise:

1. Suggestive behavior by police
2. Photo array unreliable based on nature of the witness
3. Right to counsel.
4. Fruit of an illegal arrest or other police misconduct.
5. Fruit of an illegally obtained statement
a. Coerced statement
b. Miranda
c. Right to counsel
6. The photo array is biased, based on the latest scientific research on photo arrays.

B. If you are relying on scientific or technical information as the basis for your objection, give
the court a copy of the relevant articles in advance of the court proceeding. This not only helps
your chances of winning the objection, but it educates the judge about the issue.

C. Prosecutorial Misconduct in Summation

1. In General

a. It is not impolite to interrupt opposing counsel's summation -- it is
mandatory to preserve error and stop the prejudice.

b. Be sure to ask for some remedy any time an objection is sustained to remarks
in a prosecutor's closing argument.

1. Admonish the jury to ignore the statements.
2. Admonish the prosecutor not to do it again.
3. Mistrial.

2. Some common objections to prosecutorial summations.

a. Distorting or lessening the burden of proof.

b. Negative references to the defendant's exercise of a constitutional or statutory
right.
4
5
1. Pre- and post- arrest silence.
2. Requests for counsel.
3. Not testifying at trial.

c. Religious or patriotic appeals -- particularly now that the government is
asserting that everything it doesnt like (including your client) is tied to terrorism.

d. Appeals to sympathy, passion or sentiment.

e. Name-calling or other invective directed at either the defendant, defense
counsel or the defense theory.

f. References to evidence that has been suppressed or not introduced.

g. Attacks on the defendant's character, when character has not been made an
issue in the case.

D. Some Common Objections in the Evidentiary Portion of the Trial

1. Improper introduction of uncharged crimes or bad acts attributed to the defendant

2. The court improperly limited the defense right to cross-examine witnesses.

3. The court wrongfully permitted the prosecutor to cross-examine the defendant in a
prejudicial manner or about improper subjects.

a. The defendant's pre- and post-arrest silence.

b. The defendant's request for a lawyer and consultation with counsel.

4. The prosecutor tried to have a police officer testify about the defendants invocation of
his right to silence or his request for a lawyer.

5. Improper use of expert testimony.

a. There was no need for an expert because a lay jury could understand the
subject on its own.

b. The opinion evidence was given outside the area of the expert's expertise.

c. The expert is unqualified.

d. The experts opinion is so far outside the mainstream of current thought as to
be junk science. Make a Daubert challenge.
EVIDENCEBLOCKING

Evidence Blocking*

Jonathan Rapping**

* The term evidence blocking and the ideas set forth in this paper come
from my colleague and mentor at the D.C. Public Defender Service, Jonathan
Stern. Mr. Stern honed the practice of evidence blocking to an art. There is not a
concept in this paper that I did not steal from Mr. Stern, including examples
presented. He deserves full credit for this paper.

** Jonathan Rapping is the Executive Director of the Southern Public
Defender Training Center and is on the faculty of Atlantas John Marshall law
School.
1
I. Facts of the World v. Facts of the Case

If a tree falls in the woods and no one is there to hear it, does it make a
sound? We may confidently answer, yes. However, we cannot, with certainty,
know what exactly it sounded like. Scientists might estimate what the sound
would have been based on whatever factors scientists use, but that will be an
approximation. They may disagree on the density of other vegetation in the area
that would affect the sound, or the moisture in the soil that may be a factor.
Perhaps the guess will be close to the actual sound. Perhaps not. We can never
know for sure. A trial is the same way. It is a recreation, in a courtroom, of a
series of events that previously took place. There are disagreements over factors
that impact the picture that is created for the jury. The picture painted for the
jury is affected by biases of the witnesses, the quality and quantity of evidence
that is admitted, and the jurys own viewpoint. In the end, the picture the jury
sees may be close to what actually occurred or may be vastly different.
Understanding that the picture that is painted for the jury is the one that
matters is central to the trial lawyers ability to be an effective advocate. It is
helpful to think of facts in two categories: facts of the world and facts of the case.
The first category, facts of the world, are the facts that actually occurred
surrounding the event in question in our case. We will never know with
certainty what the facts of the world are. The second category, facts of the case,
are the facts that are presented at trial. It is from these facts that the fact-finder
will attempt to approximate as closely as possible the facts of the world. The
fact-finder will never be able to perfectly recreate a picture of what happened
during the incident in question. How close the fact-finder can get will be a
function of the reliability and completeness of the facts that are presented at trial.

II.
By understanding that the outcome of the trial is a function of the facts of
the case, we have a huge advantage over the prosecution. The prosecutor tends
to believe he knows the truth. He thinks the facts of the world are perfectly
reflected by his view of the evidence known to him. When the facts of the case
point to a conclusion that is different from the one he believes he knows to be
true, the prosecutor is unable to adjust. He cant move from the picture he has
concluded in his mind to be true. Therefore, he renders himself unable to see
the same picture that is painted before the jury at trial. The good defense
attorney understands she is incapable of knowing the truth. She focuses on the
facts of the case. She remains flexible to adjust to facts that are presented, or
excluded, that she did not anticipate. In that sense she is better equipped to see
The Difference Between Prosecutors and Defense Attorneys

2
the picture the jury sees and to effectively argue that picture as one of innocence,
or that at least raises a reasonable doubt.
The ability to think outside the box is one of the main advantages defense
attorneys have over prosecutors. It is a talent honed out of necessity. We
necessarily have to reject the version of events that are sponsored by the
prosecution. They are a version that points to our clients guilt. We must remain
open to any alternative theory, and proceed with that open mind throughout our
trial preparation.
Prosecutors generally develop a theory very early on in the investigation
of the case. Before the investigation is complete they have usually settled on a
suspect, a motive, and other critical details of the offense. In the prosecutors
mind, this version of events is synonymous with what actually happened. In
other words, the prosecutor assumes he knows the truth. The fundamental
problem with this way of thinking is that all investigation from that point on is
with an eye towards proving that theory. Instead of being open minded about
evidence learned, there is a bias in the investigation. Evidence that points to
another theory must be wrong. When it comes to a witness who supports the
governments theory but, to an objective observer, has a great motive to lie, the
prosecutor assumes the witness is truthful and that the motive to lie is the
product of creative defense lawyering. This way of thinking infects the
prosecution at every level: from the prosecutor in charge of the case to law
enforcement personnel who are involved with the prosecution. Whether the
prosecution theory ultimately is right or wrong, this mid-set taints the ability to
critically think about the case.
Good defense attorneys dont do this!!! We understand that the truth is
something we will almost certainly never know and that, more importantly, will
not be accurately represented by the evidence that makes it into the trial. We
understand that a trial is an attempt to recreate a picture of historical events
through witnesses who have biases, mis-recollections, and perceptions that can
be inaccurate. We know trials are replete with evidence that is subject to a
number of interpretations and that the prism through which the jury views this
evidence depends on the degree to which, and manner in which, it is presented.
In short, as defense attorneys, we understand that a trial is not about what
really happened. Rather, it is about the conclusions to which the fact-finder is
led by the facts that are presented at trial. This may closely resemble what
actually occurred or be far from it. We will never know. As defense attorneys
we deal with the facts that will be available to our fact-finder. To do otherwise
would be to do a disservice to our client.
For example, imagine a case that hinges on one issue, whether the traffic
light was red or green. The prosecutor has interviewed ten nuns, all of whom
3
claim to have witnessed the incident in question. Each of the ten nuns insists
that the light was green. The defense has one lone witness. This witness says the
light was red. At trial, not a single nun shows up to court. The only witness to
testify to the color of the light is the lone defense witness, who says it was red.
The prosecutor sees this case as a green light case in which one witness was
wrong. The jury, on the other hand, sees only a red light case. It knows nothing
of the nuns. The only evidence is that the light was red. As defense attorneys we
must also see the case as a red light case. These are the only facts of the case.
Even assuming the ten nuns were correct, that the light was green, those facts are
irrelevant to this case and the jury that will decide it.

III.
A wise advocacy principle is to never underestimate your opponent.
Along this line it would behoove you to assume that if the prosecutor wants a
piece of evidence in a case, it is because it is helpful to his plan to win a
conviction against your client. Assume he is competent. Assume he knows what
he is doing. Assume that fact is good for his case, and therefore bad for your
client. Therefore, you do not want that fact in the case. Resist the temptation to
take a fact the prosecution will use, and make it a part of your defense before you
have considered whether you can have that fact excluded from the trial and how
the case will look without it. Far too often defense attorneys learn facts in a case
and begin thinking of how those facts will fit into a defense theory without
considering whether the fact can be excluded from the trial. This puts the cart
The Art of Evidence Blocking

The defense attorneys job is to shape the facts of the case in a manner
most favorable to her client. She must be able to identify as many ways as
possible to keep facts that hurt her client from becoming facts of the case.
Likewise, she must be thoughtful about how to argue the admissibility of facts
that are helpful to her clients case. This requires a keen understanding of the
facts that are potentially part of the case and a mastery of the law that will
determine which of these facts become facts of the case.
As a starting proposition, the defense attorney should consider every
conceivable way to exclude every piece of evidence in the case. Under the
American system of justice, the prosecution has the burden of building a case
against the defendant. The prosecution must build that case beyond a reasonable
doubt. The facts available to the prosecution are the bricks with which the
prosecutor will attempt to build that case. At the extreme, if we can successfully
exclude all of the facts, there will be no evidence for the jury. It follows that the
more facts we can successfully keep out of the case, the less bricks available to
the prosecution from which to build the case against our client.
4
before the horse. We must train ourselves to view every fact critically. We must
consider whether that fact is necessarily going to be a part of the case before we
decide to embrace it
1
A.
.
The prosecutor obviously knows his case, and how he plans to build it,
much better than you do. If you accept the premise prosecutors tend to do
things for a reason, i.e. to help convict your client, then it follows that any fact the
prosecution wishes to use to build its case against your client is one we should
try to keep out of evidence. Even if you are unwilling to give the prosecutor that
much credit, limiting the facts at his disposal to use against your client can only
be beneficial. This defines a method of practice coined by Jonathan Stern as
evidence blocking. Put plainly, evidence blocking is the practice of working to
keep assertions about facts of the world out of the case. This exercise is one that
forces us to consider the many ways facts can be kept out of evidence, and
therefore made to be irrelevant to the facts of the case, and the derivative benefits
of litigating these issues.
It is helpful to think of evidence blocking in four stages: 1)
suppression/discovery violations; 2) witness problems; 3) evidence problems;
and presentation problems.

The first stage we must think about when seeking to block evidence
Suppression / Discovery and Other Statutory Violations
includes violations by the prosecution team of the Constitution, statutory
authority, or court rule. We must think creatively about how evidence gathered
by the State may be the fruit of a Constitutional violation. Generally, in this
regard, we consider violations of the Fourth, Fifth, and Sixth Amendments. We
look to any physical evidence seized by the government, statements allegedly
made by your client, and identifications that arguably resulted from a
government-sponsored identification procedure. We consider theories under
which this evidence was obtained illegally and we move to suppress that
evidence. We also must look to any violations of a statute or rule that might
arguably warrant exclusion of evidence as a sanction. A prime example of this is
a motion to exclude evidence based on a violation of the law of discovery. How
we litigate these issues will define how much of the evidence at issue is admitted

1
Of course, after going through this exercise, there will be facts that you have concluded are going to be
part of the facts of the case. These are facts beyond control. At that point it is wise to consider how
your case theory might embrace these facts beyond control, thereby neutralizing their damaging impact.
However, this paper is meant to serve as a caution to the defense attorney to not engage in the exercise of
developing a case theory around seemingly bad facts until she has thoroughly considered whether she can
exclude those facts from the case.
5
at trial and how it can be used. We must use our litigation strategy to define
how these issues are discussed.

B.

A second stage of evidence blocking involves identifying problems
with government witnesses. This includes considering the witness basis of
knowledge. A witness may not testify regarding facts about which she does not
have personal knowledge. It also includes thinking about any privileges the
witness may have. Be thoughtful about whether a witness has a Fifth
Amendment privilege. Consider marital privilege, attorney/client privilege, and
any other privilege that could present an obstacle to the governments ability to
introduce testimony it desires in its case. Another example of a witness problem
is incompetency. We should always be on the lookout for information that
arguable renders a witness incompetent to testify and move to have that witness
excluded from testifying at trial. These are some examples of witness problems.

Witness Problems
C.

While witness problems relate to problems with the witness herself, we
must also consider a third stage of evidence blocking: problems with the
evidence itself. Even with a witness who has no problems such as those
described above, there may be problems with the evidence the government
wishes for them wish to present. Perhaps the information the witness has is
barred because it is hearsay. Consider whether the evidence is arguably
irrelevant. Think about whether the evidence is substantially more prejudicial
than probative. These are all examples of problems with the evidence.

Evidence Problems
D.

A final stage of evidence blocking involves a problem with the method
Presentation Problems
of presentation of the evidence. Maybe the government is unable to complete the
necessary chain of custody. The prosecutor may be missing a witness who is
critical to completing the chain of custody. Maybe the prosecutor has never been
challenged with respect to chain of custody and is unaware of who he needs to
get the evidence admitted. By being on your feet you may successfully exclude
the evidence the prosecutor needs to make its case against your client. Another
example of a presentation problem is where the prosecutor is unable to lay a
proper foundation for admission of some evidence. A third example is a
prosecutor who is unable to ask a proper question (for example, leading on
6
direct). These are all examples of problems the prosecutor could have in getting
evidence before the jury if you are paying attention and making the appropriate
objections.

IV.
Some motions must be filed in writing prior to trial, such as motions to
suppress. Each jurisdiction is different on the requirement regarding what must
be filed pre-trial and the timing of the filing
How Do You Raise An Issue

Once you have decided that there is evidence that should not be admitted
at your trial you must consider the best method for bringing the issue to the
Courts attention. You essentially have three options: 1) file a pretrial written
Motion in Limine, 2) raise the issue orally as a preliminary matter, or 3) lodge a
contemporaneous objection. There are pros and cons to each of these methods.
2
What are the pros and cons of the different methods of raising an
objection? Lets first consider a written, pretrial motion in limine. There are
several advantages to filing a pretrial motion in limine to exclude evidence on
evidentiary grounds. One is that it gives you a chance to educate the judge on
the issue. Judges, like all of us, often do not know all of the law governing a
particular issue off the top of their heads. If forced to rule on an issue without
giving it careful thought, most judges rely on instinct. It is the rare judge whose
instinct it is to help the criminal defendant. If the judge is going to rely on one of
the parties to guide her, it is more often than not the prosecutor
. For any motions that must be filed
pretrial, you should always file pretrial motions whenever possible, for reasons
stated below. However, many evidentiary issues may be raised without filing a
motion. Objections to evidence on grounds that it is hearsay, irrelevant,
substantially more prejudicial than probative, or any number of evidentiary
grounds, are routinely made contemporaneously during trial. Certainly, should
you anticipate an evidentiary issue in advance of trial you may raise it with the
court. This may be done orally as a preliminary matter or in writing as a motion
in limine.
3

2
In Georgia, pursuant to O.C.G.A. 17-7-110, all pretrial motions, demurrers, and special pleas must be
filed within ten days of the date of arraignment unless the trial court grants additional time pursuant to a
motion.
3
To the extent that you have previous experience with that judge and you have developed a reputation for
being thorough, smart, and honest, you may be the person upon whom the judge relies. If that is the case
with the judge before whom you will be in trial, that may factor into your decision about whether to object
contemporaneously.
. Therefore, you
are often better often having had the chance to educate the judge than to rely on
her ruling in your favor on a contemporaneous objection when the answer is not
obvious.
7
A second reason for filing a written motion pretrial is that you are entitled
to a response from the prosecutor. This benefits you in several ways. First,
every time you force the prosecution to commit something to writing, you learn a
little more about their case. Filing motions are a great way to get additional
discovery by receiving a response. Second, whenever the prosecutor commits
something to writing, he is locking himself into some version of the facts. If he
characterizes a witnesses testimony in a particular way and that witness ends up
testifying differently, you have an issue to litigate. Presumably, the prosecutor
accurately stated in his response to your motion what the witness told him or his
agent. You now are entitled to call the prosecutor, or his agent, to impeach the
witness. Maybe the response is an admission of the party opponent that can be
introduced at trial. The bottom line is that there is now an issue where there
would not have been one had you not forced the response to your motion
4

4
One of J onathan Sterns cardinal rules that I have taken to heart is that you always want to be litigating
something other than guilt or innocence.
.
A third reason for filing a written motion is that there is always the chance
that the prosecutor will fail to respond, despite being required to by law or
ordered to by the court. Whenever the prosecutor fails to respond to a written
motion you are in a position to ask for sanctions. Sanctions may be for the court
to treat your motion as conceded. They might be exclusion of some evidence.
Perhaps you may get an instruction in some circumstances. Be creative in the
sanctions you request.
A fourth reason is that when you file a motion, you get a hearing. Pretrial
hearings are great things. They give us a further preview of the prosecutions
case, commit the prosecution to the evidence presented at the hearing, and may
result in sanctions.
A fifth reason for filing motions whenever you can is that it increases the
size of your clients court file. A thick court file can be beneficial to your client in
several ways. The shear size of a large court file is intimidating to judges and
prosecutors. Judges like to move their dockets. Thick case files tend to be trials
that take a long time to complete. Judges will be less likely to force you to trial in
a case with a thick case jacket. Similarly, prosecutors often have to make choices
about which cases to offer better pleas in or to dismiss outright. The more of a
hassle it is to deal with a case, the greater the chance the prosecutor will offer a
good plea to your client or dismiss the case outright.
A sixth reason is that by taking the time to research and write the motion,
you are better preparing yourself to deal with the issue and to consider how it
impacts your trial strategy.
8
A final reason for filing pretrial motions even when not required is that
you appear to be honest and concerned with everyone getting the result right.
By appearing to be on the up and up you can gain points with the court that will
spill over to other aspects of the trial.
What are the downsides to filing a motion in advance of trial. One is
certainly that you give the prosecution a heads up to an issue you seek to raise.
To the extent that you identify a problem with the governments case, they may
be able to fix it with advance notice. Certainly this is an important consideration
that must be factored into your decision about whether to raise an evidentiary
issue in writing, pretrial. A second issue, which concerns me much less, is that it
allows the prosecutor to do the research he needs to do to address the legal issue
you raise. Certainly by filing a pretrial motion you allow everyone to be more
prepared. However, if the issue is an important one, and the judges ruling
depends on the prosecutor having a chance to do some research, most judges
will give the prosecutor time to research the question before ruling whenever
you raise it. To the extent this holds up the trial, there is always the risk the
judge will fault you for not raising the issue earlier.
The third option, raising the issue orally as a preliminary matter, is a
compromise between the other two alternatives. Obviously, it has some of the
pros and cons of the other alternatives. How you handle any given issue must be
the product of careful thought and analysis.

V. Conclusion

In conclusion, as defense attorneys we must take advantage of any tools at
our disposal to alter the landscape of the trial in our clients favor. In order to do
this we must understand and appreciate the difference between facts in the
world and facts in the case. By undergoing a rigorous analysis of the facts that
are potentially part of the case against our client, we may be able to keep some of
those facts out of evidence. This exercise has the benefit of keeping from the
prosecutor some of the blocks he hoped to use to build the case against you
client. It alters the facts of the case in a way the prosecutor may be unable to deal
with. And by litigating these issues we stand to derive residual benefits that will
shape the outcome of the trial.
8 Trial Briefs
n
APRIL 2005
F O C U S
by Stephen P. Lindsay
Stephen P. Lindsay is a senior partner
in the law rm of Cloninger, Lindsay,
Hensley & Searson, P.L.L.C, in
Asheville. His rm specializes in all
types of litigation. Lindsay focuses
primarily on criminal defense in
both state and federal courts. He
graduated from Guilford College with
a BS in Administration of Justice and
earned his JD from the University
of North Carolina School of Law.
A faculty member of the National
Criminal Defense College in Macon,
Georgia, Lindsay dedicates between
four and six weeks per year teaching
and lecturing for various public
defender organizations and criminal
defense bar associations both within
and outside of the United States.
If You Build It, They Will Come:
Creating and Utilizing a
Meaningful Theory of Defense
S
o the le hits your desk. Before you
open to the rst page you hear the
shrill noise of not just a single dog,
but a pack of dogs. Wild dogs. Nipping at
your pride. You think to yourself, Why
me? Why do I always get the dog cases?
It must be fate. You calmly place the le
on top of the stack of ever-growing canine
les. Your reach for your cup of coffee and
seriously consider upping your member-
ship in the S.P.C.A. to Angel status. Just
as you think a change in profession might
be in order, your coworker steps in the
door, new le in hand, lets out a piercing
howl and says, This one is the dog of all
dogs. The mother of all dogs! Alas. You
are not alone.
Dog files bark because there does
not appear to be any reasonable way to
mount a successful defense. Put another
way, winning the case is about as likely
as a crowd of people coming to watch a
baseball game at a ballpark in a corneld
in the middle of Iowa. According to the
movie, Field of Dreams, If you build it,
they will come . . . And they came. And
they watched. And they enjoyed. Truth be
known, they would come again, if invited
even if they were not invited.
Every dog case is like a eld of dreams:
nothing to lose and everything to gain.
Believe it or not, out of each dog case can
rise a meaningful, believable, and solid de-
fensea defense that can win. But as Kev-
in Costners wife said in the movie, [I]f
all of these people are going to come, we
have a lot of work to do. The key to build-
ing the ballpark is in designing a theory of
defense supported by one or more mean-
ingful themes.
What Is a Theory and
Why Do I Need One?
Having listened over the last 20 years to
some of the nest criminal defense attor-
neys lecture on theories and themes, it has
become clear to me that there exists great
confusion as to what constitutes a theory
and how it differs from supporting themes.
The words theory and theme are of-
ten used interchangeably. However, they
are very different concepts. So what is a
theory? Here are a few denitions:
That combination of facts (beyond
change) and law which in a common
sense and emotional way leads a jury
to conclude a fellow citizen is wrong-
fully accused.Tony Natale
One central theory that organizes all
facts, reasons, arguments and furnishes
the basic position from which one
determines every action in the trial.
Mario Conte
A paragraph of one to three sentences
which summarizes the facts, emotions
and legal basis for the citizen accuseds
acquittal or conviction on a lesser
charge while telling the defenses story
of innocense or reduces culpability.
Vince Aprile
Common Thread Theory Components
Although helpful, these denitions, with-
out closer inspection, tend to leave the
reader thinking Huh? Rather than try
to decipher these various denitions, it is
more helpful to compare them to nd com-
monality. The common thread within these
denitions is that each requires a theory of
defense to have the same three essential el-
ements:
1. a factual component (fact-crunching/
brainstorming);
2. a legal component (genre); and
3. an emotional component (themes/
archetypes).
In order to fully understand and appre-
ciate how to develop each of these elements
in the quest for a solid theory of defense, it
APRIL 2005
n
Trial Briefs 9
C R E AT I N G A N D U T I L I Z I N G A ME A N I N GF U L T H E ORY OF D E F E N S E
is helpful to have a set of facts with which
to work. These facts can then be used to
create possible theories of defense. The
Kentucky Department of Public Advocacy
developed the following fact problem:
State v. Barry Rock, 05 CRS 10621
(Buncombe County)
Betty Gooden is a pretty, very intelligent
young lady as described by the social
worker investigating her case. Last spring,
Betty went to visit her school guidance
counselor, introducing herself and com-
menting that she knew Ann Haines (a girl
that the counselor had been working with
due to a history of abuse by her uncle, and
who had recently moved to a foster home
in another school district).
Betty said that things were not going
well at home. She said that her stepdad,
Barry Rock, was very strict and would
make her go to bed without dinner. Her
mother would allow her and her brother
(age 7) to play outside, but when Barry got
home, he would send them to bed. She also
stated that she got into trouble for bringing
a boy home. Barry yelled at her for having
sex with boys in their trailer. This morning,
she said, Barry came to school and told her
teacher that he caught her cheatingcopy-
ing someones homework. She denied hav-
ing sex with the boy or cheating. She was
very upset that she wasnt allowed to be a
normal teenager like all her friends.
The counselor asked her whether Barry
ever touched her in an uncomfortable way.
She became very uncomfortable and began
to cry. The counselor let her return to class,
then met her again later in the day with a
police ofcer present. At that time, Betty
stated that since she was 10, Barry had
told her if she did certain things, he would
let her open presents. She explained how
this led to Barry coming into her room in
the middle of the night to do things with
her. She stated that she would try to be
loud enough to wake up her mother in the
room next door in the small trailer, but her
mother would never come in. Her mother
is mentally retarded, and before marrying
Barry, had quite a bit of contact with Social
Services due to her weak parenting skills.
She stated that this had been going on more
and more frequently in the last month and
estimated it had happened 10 times.
Betty is an A/B student who showed no
sign of academic problems. After report-
ing the abuse, she has been placed in a fos-
ter home with her friend Ann. She has also
attended extensive counseling sessions to
help her cope. Medical exams show that
she has been sexually active.
Kim Gooden is Bettys 35-year-old men-
tally retarded mother. She is a very meek
and introverted person who is very soft
spoken and will not make eye contact. She
told the investigator she had no idea Bar-
ry was doing this to Betty. She said Barry
made frequent trips to the bathroom and
had a number of stomach problems that
caused diarrhea. She said that Betty always
wanted to go places with Barry and would
rather stay home with Barry than go to the
store with her. She said that she thought
Betty was having sex with a neighbor boy,
and she was grounded for it. She said that
Betty always complains that she doesnt
have normal parents and cant do the things
her friends do. She is very confused about
why Betty was taken away and why Bar-
ry has to live in jail now. An investigation
of the trailer revealed panties with semen
that matches Barry. Betty says those are her
panties. Kim says that Betty and her are the
same size and share all of their clothes.
Barry Rock is a 39-year-old mentally re-
tarded man who has been married to Kim
for ve years. They live together in a small
trailer making do with the Social Security
checks that they both get due to mental re-
tardation.
Barry now adamantly denies that he ever
had sex and says that Betty is just making
this up because he gured out she was hav-
ing sex with the neighbor boy. After Bettys
report to the counselor, Barry was inter-
viewed for six hours by a detective and local
police ofcer. In this videotaped statement,
Barry is very distant, not making eye con-
tact, and answering with one or two words
to each question. Throughout the tape, the
officer reminds him just to say what they
talked about before they turned the tape on.
Barry does answer yes when asked if he
had sex with Betty and yes to other lead-
ing questions based on Bettys story. At the
end of the interview, Barry begins rambling
that it was Betty that wanted sex with him,
and he knew that it was wrong, but he did
it anyway.
Barry has been tested with IQs of 55, 57,
and 59 over the last three years. Following
a competency hearing, the trial court found
Barry to be competent to go to trial.
The Factual Component
The factual component of the theory of de-
fense comes from brainstorming the facts.
More recently referred to as fact-busting,
brainstorming is the essential process of
setting forth facts that appear in discovery
and arise through investigation.
It is critical to understand that facts are
nothing moreand nothing lessthan just
facts during brainstorming. Each fact should
be written down individually and without
any spin. Non-judgmental recitation of the
facts is the key. Do not draw conclusions as
to what a fact or facts might mean. And do
not make the common mistake of attribut-
ing the meaning to the facts that is given to
them by the prosecution or its investigators.
It is too early in the process to give value
or meaning to any particular fact. At this
point, the facts are simply the facts. As we
work through the other steps of creating a
theory of defense, we will begin to attribute
meaning to the various facts.
Judgmental Facts Non-Judgmental Facts
(WRONG) (RIGHT)
Barry was retarded Barry had an IQ of 70
Betty hated Barry Barry went to Bettys school, went to her classroom,
confronted her about lying, accused her of sexual
misconduct, talked with her about cheating,
dealt with her in front of her friends
Confession was coerced Several ofcers questioned Barry,
Barry was not free to leave the station,
Barry had no family to call,
questioning lasted six hours
10 Trial Briefs
n
APRIL 2005
The Legal Component
Now that the facts have been developed in
a neutral, non-judgmental way, it is time to
move to the second component of the theo-
ry of defense: the legal component. Experi-
ence, as well as basic notions of persuasion,
reveal that stark statements such as self-
defense, alibi, reasonable doubt, and
similar catch-phrases, although somewhat
meaningful to lawyers, fail to accurately
and completely convey to jurors the essence
of the defense. Alibi is usually interpret-
ed by jurors as He did it, but he has some
friends that will lie about where he was.
Reasonable doubt is often interpreted as,
He did it, but they cant prove it.
Thus, the legal component must be more
substantive and understandable in order to
accomplish the goal of having a meaning-
ful theory of defense. Look at Hollywood
and the cinema; thousands of movies have
been made that have as their focus some
type of alleged crime or criminal behavior.
According to Cathy Kelly, training director
for the Missouri Pubic Defenders Ofce,
when these types of movies are compared,
the plots, in relation to the accused, tend to
fall into one of the following genres:
1. It never happened (mistake, set-up);
2. It happened, but I didnt do it (mistak-
en identication, alibi, set-up, etc.);
3. It happened, I did it, but it wasnt a
crime (self-defense, accident, claim or
right, etc.);
4. It happened, I did it, it was a crime,
but it wasnt this crime (lesser included
offense);
5. It happened, I did it, it was the crime
charged, but Im not responsible
(insanity, diminished capacity);
6. It happened, I did it, it was the crime
charged, I am responsible, so what?
(jury nullication).
The six genres are presented in this
particular order for a reason. As you move
down the list, the difculty of persuading
the jurors that the defendant should prevail
increases. It is easier to defend a case based
upon the legal genre it never happened
(mistake, set-up) than it is on the defen-
dant is not responsible (insanity).
Using the facts of the Barry Rock ex-
ample as developed through non-judgmen-
tal brainstorming, try to determine which
genre ts best. Occasionally, facts will t
into two or three genres. It is important
to settle on one genre, and it should usu-
ally be the one closest to the top of the list;
this decreases the level of defense difcul-
ty. The Rock case ts nicely into the rst
genre (it never happened), but could also t
into the second category (it happened, but
I didnt do it). The rst genre should be the
one selected.
But be warned. Selecting the genre is
not the end of the process. The genre is
only a bare bones skeleton. The genre is a
legal theory, not your theory of defense. It
is just the second element of the theory of
defense, and there is more to come. Where
most attorneys fail when developing a the-
ory of defense is in stopping once the le-
gal component (genre) is selected. As will
be seen, until the emotional component is
developed and incorporated, the theory of
defense is incomplete.
It is now time to take your work prod-
uct for a test drive. Assume that you are the
editor for your local newspaper. You have
the power and authority to write a head-
line about this case. Your goal is to write
it from the perspective of the defense, be-
ing true to the facts as developed through
brainstorming, and incorporating the legal
genre that has been selected. An example
might be:
Rock Wrongfully Tossed from Home
by Troubled Stepdaughter
Word choice can modify, or entirely change,
the thrust of the headline. Consider the head-
line with the following possible changes:
Rock Barry, Innocent Man,
Mentally Challenged
Man
Wrongfully Removed, Ejected,
Tossed Sent Packing, Calmly
Asked To Leave
Troubled Vindictive, Wicked,
Confused
Stepdaughter Brat, Tease, Teen,
Houseguest,
Manipulator
Notice that the focus of this headline is
on Barry Rock, the defendant. It is impor-
tant to decide whether the headline could
be more powerful if the focus were on
someone or something other than the de-
fendant. Headlines do not have to focus on
the defendant in order for the eventual the-
ory of defense to be successful. The focus
does not even have to be on an animate ob-
ject. Consider the following possible head-
line examples:
Troubled Teen Fabricates Story
for Freedom
Overworked Guidance Counselor
Unknowingly Fuels False Accusations
Marriage Destroyed When Mother
Forced to Choose Between Husband
and Troubled Daughter
Underappreciated Detective Tosses
Rock at Superiors
Each of these headline examples can be-
come a solid theory of defense and lead to
a successful outcome for the accused.
The Emotional Component
The last element of a theory of defense is
the emotional component. The factual ele-
ment or the legal element, standing alone,
are seldom capable of persuading jurors to
side with the defense. It is the emotional
component of the theory that brings life, vi-
ability, and believability to the facts and the
law. The emotional component is generated
from two sources: archetypes and themes.
Archetypes, as used herein, are basic,
fundamental, corollaries of life that tran-
scend age, ethnicity, gender and sex. They
are truths that virtually all people in virtu-
ally all walks of life can agree upon. For
example, few would disagree that when
ones child is in danger, one protects the
child at all costs. Thus, the archetype dem-
onstrated would be a parents love and ded-
ication to his or her child. Other archetypes
include love, hate, betrayal, despair, pover-
ty, hunger, dishonesty and anger. Most cas-
es lend themselves to one or more arche-
types that can provide a source for emotion
to drive the theory of defense. Archetypes
in the Barry Rock case include:
The difculties of dealing with a
stepchild
Children will lie to gain a perceived
advantage
Maternity/paternity is more powerful
than marriage
Teenagers can be difcult to
parent
APRIL 2005
n
Trial Briefs 11
Not only do these archetypes fit nicely
into the facts of the Barry Rock case, each
serves as a primary category of inquiry
during jury selection.
In addition to providing emotion
through archetypes, attorneys should use
primary and secondary themes. A prima-
ry theme is a word, phrase, or simple sen-
tence that captures the controlling or dom-
inant emotion of the theory of defense. The
theme must be brief and easily remem-
bered by the jurors.
For instance, a primary theme developed
in the theory of defense and advanced dur-
ing the trial of the O.J. Simpson case was,
If it doesnt t, you must acquit. Other
examples of primary themes include:
One for all and all for one
Looking for love in all the
wrong places
Am I my brothers keeper?
Stand by your man (or woman)
Wrong place, wrong time,
wrong person
When you play with re, youre going
to get burned
Although originality can be successful,
it is not necessary to redesign the wheel.
Music, especially country/western music,
is a wonderful resource for nding themes.
Consider the following lines taken direct-
ly from the songbooks of Nashville (and
assembled by Dale Cobb, an incredible
criminal defense attorney from Charles-
ton, South Carolina):
Top 10 Country/Western Lines
(Themes?)
10. Get your tongue outta my mouth
cause Im kissin you goodbye.
9. Her teeth was stained, but her heart
was pure.
8. I bought a car from the guy who stole
my girl, but it dont run so were even.
7. I still miss you, baby, but my aims
gettin better.
6. I wouldnt take her to a dog ght cause
Im afraid shed win.
5. If I cant be number one in your life,
then number two on you.
4. If I had shot you when I wanted to,
Id be out by now.
3. My wife ran off with my best friend,
and I sure do miss him.
2. She got the ring and I got the nger.
1. Shes actin single and Im drinkin
doubles.
Incorporating secondary themes can
often strengthen primary themes. A sec-
ondary theme is a word or phrase used to
identify, describe, or label an aspect of the
case. Here are some examples: a person
never his fault; an actionacting as a
robot; an attitudestung with lust; an
approachno stone unturned; an omis-
sionnot a rocket scientist; a condition
too drunk to sh.
There are many possible themes that
could be used in the Barry Rock case. For
example, blood is thicker than water; Bit-
ter Betty comes a calling; to the detec-
tives, interrogating Barry should have been
like shooting sh in a barrel; sex abuse is
a serious problem in this countryin this
case, it was just an answer; the extent to
which a person will lie in order to feel ac-
cepted knows no bounds.
Creating the Theory of Defense
Paragraph
Using the headline, the archetype(s) identi-
ed, and the theme(s) developed, it is time
to write the Theory of Defense Paragraph.
Although there is no magical formula for
structuring the paragraph, the following
template can be useful:
Theory of Defense Paragraph
Open with a theme
Introduce protagonist/antagonist
Introduce antagonist/protagonist
Describe conict
Set forth desired resolution
End with theme
Note that the protagonist/antagonist does
not have to be an animate object.
The following examples of theory of de-
fense paragraphs in the Barry Rock case
are by no means rst drafts. Rather, they
have been modified and adjusted many
times to get them to this level. They are not
perfect, and they can be improved upon.
However, they serve as good examples of
what is meant by a solid, valid, and useful
theory of defense.
Theory of Defense Paragraph One
The extent to which even good people will
tell a lie in order to be accepted by others
knows no limits. Barry, if you just tell us
you did it, this will be over and you can go
home. It will be easier on everyone. Barry
Rock is a very simple man. Not because of
free choice, but because he was born men-
tally challenged. The word of choice at that
time was retarded. Despite these limita-
tions, Barry met Kim Gooden, who was
also mentally challenged, and the two got
married. Betty, Kims daughter, was young
at that time. With the limited funds from
Social Security Disability checks, Barry
and Kim fed and clothed Betty, made sure
she had a safe home in which to live, and
provided for her many needs. Within a few
years, Betty became a teenager, and with
that came the difculties all parents expe-
rience with teenagers: not wanting to do
homework, cheating to get better grades,
wanting to stay out too late, experimenting
with sex. Mentally challenged, and only a
stepparent, Barry tried to set some rules
rules Betty didnt want to obey. The lie that
Betty told stunned him. Kims trust in her
daughters word, despite Barrys denials,
hurt him even more. Blood must be thicker
12 Trial Briefs
n
APRIL 2005
than water. All Barry wanted was for his
family to be happy like it had been in years
gone by. Everything will be okay, Barry.
Just say you did it and you can get out of
here. It will be easier for everyone if you
just admit it.
Theory of Defense Paragraph Two
The extent to which even good people will
tell a lie in order to be accepted by oth-
ers knows no limits. Full of despair and all
alone, confused and troubled, Betty Gooden
walked into the guidance counselors of-
ce at her school. Betty was at what she be-
lieved to be the end of her rope. Her mother
and stepfather were mentally retarded. She
was ashamed to bring her friends to her
house. Her parents couldnt even help her
with homework. She couldnt go out as late
as she wanted. Her stepfather punished her
for trying to get ahead by cheating. He even
came to her school and made a fool of him-
self. Noof her!!! She couldnt even have
her boyfriend over and mess around with
him without getting punished. Life would
be so much simpler if her stepfather were
gone. As she waited in the guidance coun-
selors ofce, Bitter Betty decided there was
no other optionjust tell a simple, not-so-
little lie. Sex abuse is a serious problem in
this country. In this case, it was not a prob-
lem at allbecause it never happened. Sex
abuse was Bettys answer.
The italicized portions in the above ex-
amples denote primary themes and sec-
ondary themesthe parts of the emo-
tional component of the theory of defense.
Attorneys can strengthen the emotional
component by describing the case in ways
that embrace an archetype or archetypes
desperation in the rst example, and shame
towards parents in the second. It is also im-
portant to note that even though each of
these theories are strong and valid, the fo-
cus of each is from a different perspective.
The rst theory focuses on Barry, and the
second on Betty.
The primary purpose of a theory of de-
fense is to guide the lawyer in every action
taken during trial. The theory will make
trial preparation much easier. It will dic-
tate how to select the jury, what to include
in the opening, how to handle each witness
on cross, how to decide which witnesses
are necessary to call in the defense case,
and what to include in and how to deliver
the closing argument. The theory of de-
fense might never be shared with the ju-
rors word for word; but the essence of the
theory will be delivered through each wit-
ness, so long as the attorney remains dedi-
cated and devoted to the theory.
I
n the end, whether you choose to call
them dog cases, or to view them, as I
suggest you should, as fields of dreams,
such cases are opportunities to build base-
ball elds in the middle of cornelds in the
middle of Iowa. If you build them with a
meaningful theory of defense, and if you
believe in what you have created, the peo-
ple will come. They will watch. They will
listen. They will believe. If you build it,
they will come . . .
n
Leonard T. Jernigan, Jr., attorney and adjunct
professor of law, is pleased to announce that the 4
th
edition of North Carolina Workers Compensation -
Law and Practice is now available from Thomson
West Publishing (1-800-328-4880).
Leonard T. Jernigan, Jr.
Attorney at Law
The Jernigan Law Firm
Leonard T. Jernigan, Jr.
N. Victor Farah
Gina E. Cammarano
Lauren R. Trustman
Practice Limited To:
Workers Compensation
Serious Accidental Injury
Wachovia Capitol Center
150 Fayetteville Street Mall
Suite 1910, P.O. Box 847
Raleigh, North Carolina 27602
(919) 833-1283
(919) 833-1059 fax
www.jernlaw.com

JURYINSTRUCTIONS
1
Creative Use of Jury
Instructions
Why are jury instructions
important?
They are the law of the universe of your
case.
They are the only law the jurors will
hear.
They come from the judge, not from
either side.
They are the last thing the jurors hear.
Because jurors want to do the right
thing.
Pattern vs. Non-Pattern Jury
Instructions
PATTERN JURY
INSTRUCTIONS are
written by a committee
of eleven superior court
judges and are updated
annually. They are
published by the SOG
each June.
NON-PATTERN JURY
INSTRUCTIONS are
written by the trial judge,
the DA or YOU in cases
where the pattern
instructions fail to
address a legal question
at issue in the case.
2
When should you be thinking about
writing your own instruction?
WHENEVER A CRITICAL
CONCEPT ISNT
CLEARLY ARTICULATED
BY ANY OF THE
PATTERN
INSTRUCTIONS.
When should I read the jury
instructions?
AS SOON AS YOU THINK THERE
IS ANY CHANCE THAT THE
CASE IS GOING TO TRIAL!
Focusing on the jury instructions will help
you focus on the issues and doing so as
early as possible will help you make better
use of your prep time.
Why do we try the cases we try?
We have a great case, with great issues!
Our client is being unreasonable and/or
cant bring him/herself to sign up for time
in prison.
The DA is being unreasonable and, with a
plea offer that lousy, theres nothing to lose
in going to trial.
3
What does the last slide have to do
with jury instructions?
RARELY ARE YOU GOING TO
TRIAL BECAUSE YOUVE
GOT A GREAT CASE. YOU
NEED TO BE FOCUSED ON
THE ISSUES & HOW FOCUS
THE JURYS ATTENTION ON
YOUR ISSUES .
EXAMPLES OF NON-
PATTERN
INSTRUCTIONS
Witness has been granted immunity:
There is evidence in this case which shows that the witness, Joe
Plumber, is testifying under an agreement with the prosecutor,
whereby he will not be prosecuted for his crimes in exchange for
his testimony against the defendant.
In the situation presented, Mr. Plumber is considered, by law, to
have an interest in the outcome of this case. You should
therefore be suspicious of his testimony and approach it with the
greatest care and caution.
In your deliberations you should carefully consider whether there
are inconsistencies in the evidence of Mr. Plumber and what
evidence exists to support what he is saying.
4
Mere presence 1
I must caution you that merely being with the
co-defendant at or near the location of the
crimes, does not render the defendant guilty of
any crime. Association or contact between the
defendant the co-defendant before or after the
commission of these crimes is not sufficient and
will not justify the conclusion that the defendant
is guilty.
Mere presence 2
A person is not guilty of a crime merely
because they are present at or near the scene of
the crime. In this case, if you find that the
defendant was merely involved in the fight
inside the restaurant, along with the actual
perpetrator of this crime, either before or after
the commission of the crime, this evidence, in
and of itself, is not proof of guilt.
Analyst failed certification exam
You have heard evidence in this case that Ms.
Smith, the DNA analyst employed by the State
Bureau of Investigations, has not passed her
certification exam, as required by the NC
General Assembly. You may consider this
evidence, along with other evidence about her
qualifications, when determining what, if any,
weight to give to her testimony
5
Eyewitness Identification Reform
Act
There has been eyewitness testimony in this case
identifying the defendant as the perpetrator of this
crime. There has also been testimony about the failure
of the Rocky Mount Police Department to comply with
the Eyewitness Identification Reform Act. The
purpose of that law is to solve crime, convict the guilty,
& exonerate the innocent. The Court has taken judicial
notice of the law and a copy will be provided to you
along with these jury instructions. If you are not
convinced beyond a reasonable doubt that the police
failure to comply with the law did not taint the
identification, you may disregard the evidence.
Value is contested
And Sixth, that the fair market value
of the stolen property was greater than
$1000. The jury shall not consider the
replacement cost for the property but
only its fair market value.
Officer gives opinion testimony
Officer Brady provided opinion testimony in
this trial. Opinion testimony is offered, solely,
for the purpose of corroborating other evidence.
You should consider the officers opinion only if
you believe it is consistent with the other
evidence. Officer Brady is not an expert and his
opinion should not be given more weight than
that of any civilian witness.
6
Finally, always remember
The jury must not only consider the case in accordance with
the States theory of the occurrence but also in accordance
with the defendants theory. Defendant in apt time
requested that the law bearing upon his theory of the case
be presented to the jury. He was merely asking the court
to charge the law arising on the evidence. Justice and the
law countenance nothing less.
- State v. Tioran, 65 N.C.App.122, 125 (1983),
citing State v. Harrington, 260 N.C. 663, 666 (1963).
RECORDSGATHERING
ART OF SENTENCING

Robert C. Kemp, III
Pitt County Public Defender
February 15, 2013

A judge is a man who ends a sentence with a sentence.

-Unknown

Guideline 8.1 Obligations of Counsel in Sentencing

1) Manage Clients Expectations
a. Fully inform client of potential sentences.
b. Explain to client left/right limits of sentencing options.

2) Sell The Plea
a. To the Prosecutor
b. To the Client
c. To the J udge

Guideline 8.2 Sentencing Options, Consequences, and Procedures

1) Know your options and its consequences, to include collateral consequences

Options: Deferred prosecution, NCGS 90-96 sentencing,
consolidation of charges, probation, split-sentence,
incarceration, drug rehabilitation programs, drug court,
post-release supervision.

Consequences: Loss of drivers license, deportation, violation of probation,
no contact order, loss of certification/professional license,
loss of the use of a firearm, loss of rights of citizenship, etc.

2) Review NCGS 15A-1334The Sentencing Hearing
- Formal rules of evidence do not apply.

Guideline 8.3 Preparation for Sentencing

1) Gather helpful documents
a. Employment history: paychecks, attendance history, W-2 forms, letter from
employer
b. Proof of education: transcript, class schedule, letter from registrar
c. Medical/mental health records
d. Any certifications and licenses
e. Any evaluation and treatment documents
f. Military documents
g. Clients financial documents

2) Determine who will be in court on behalf of your client.
a. Parents, spouse, children, church official, doctor, etc.

3) Do you need a mitigation specialist?
a. Serious cases (A, B1, B2 Felonies).
b. Will the court grant you the funds to hire one?

4) Appearance of Client (You are an artist! Know your audience!)
a) Haircut
b) Clean Clothes
c) Tie (if male)
d) Belt
e) Shoes/Socks (no flip-flops)
f) No jewelry (except wedding ring), conservative earrings on females,
tasteful religious symbol
g) Hide Tattoos! (If possible)
h) No gum
i) Stay in courtroom unless official break
j) No hands in pockets
k) No cell phone
l) No crossed arms
m) Dress like you are going to your Grandmothers funeral

5) Will Client Address the Court?
- Address the Court Your Honor or Yes Maam/Sir

6) Will anyone else address the Court?
- Deviation from NCGS 15A-1334

Guideline 8.4 The Sentencing Services Plan or Presentence Report

1) If your district provides such a service, this is a valuable option.
a. Make a tactical decision on whether such a plan/report is prepared.
b. If your client participates, ensure the plan/report is accurate and complete.
c. If approved by the Court, IDS will authorize, and pay, a flat fee of $500 for
defense requested sentencing plans.

Guideline 8.5 The Prosecutions Sentencing Position

1) Determine prosecutors position on sentencing
a. Agree to no jail, will not object to probationary sentence, consolidation of
sentences, concurrent sentences, restitution issues, etc.
b. Factual Basis: minimum or no gruesome details

2) Restitution
a. Agree to amount ahead of time (leverage).
b. If no such agreement, judge shall determine whether Defendant pays. NCGS
15A-1340.34
c. Amount of restitution must be supported by the record/evidence. 15A-1340-36

d. Examples:

i. Bodily injuriesmedical bills/income lost. 15A-1340.35(a)(1)
ii. Real/personal propertyvalue of the property on the date of the
damage. 15A-1340.35(a)(2)
iii. Death of individualfuneral expenses/medical bills/income lost. 15A-
1340.35(a)(4)

e. Court must take into account ability to pay. 15A-1340.36

Guideline 8.6 The Defense Sentencing Theory

1) Mitigation Factors: (NCGS 15A-1340.16)

a. Burden of Proofon Defendant
- preponderance of the evidence

b. Proven at sentencing hearing

2) Aggravating Factors: (NCGS 15A-1340.16)

a. Burden of Proofon State
- beyond a reasonable doubt

b. Must be admitted by Defendant or determined by a jury

3) Departing from the presumptive range is in the discretion of the court. NCGS
15A-1340.6(a)

4) Recommended Sentence:
a. Use the phrase: I would respectfully request the Court to consider ..when
fashioning a judgment.
b. Use the phrase: Would the Court consider

5) KNOW THE J UDGE!
a. Her peculiarities;
b. Her idiosyncrasies;
c. Her typical judgments for certain offenses;
d. Her willingness to predict sentence pre-plea; or
e. Her pet peeves

6) Most of the time: CLEAR, CONCISE, CREDIBLE AND CONFIDENT
a. Credibility can be lost in a sentencing hearing
i. Do not guess
ii. Do not embellish/exaggerate
iii. No ridiculous points
b. Do not get a reputation for coming to court unprepared. (Asking your client
the answer to a judges question IN COURT!)

6) Examples of theories (not necessarily good ones): one of the crowd; a pawn in
the crime; substance abuse; spousal abuse; parent abuse, stupid mistake; youngest
one involved; has taken responsibility and ready to pay for her deeds, financially
destitute, etc.

7) Substantial Assistance [90-95(h)]
- Have officer and ADA locked into the deal.

8) Extraordinary Mitigation[1340.13(g)]Good Luck
- Do not ask for it without permission of your supervising attorney.

9) Advanced Supervised Releaseif DA does not object. 15A-1340.18

10) Federal Charges and Court
- Trafficking of drugs, child pornography, illegal firearm possession
- Target Letter
- Proffer Agreement
- If you think your case may go Federal, talk to your supervising attorney.

Guideline 8.7 The Sentencing Process

1) Know the Basics of your case:

a. The facts of the case.
b. Clients background: born and raised, education, family life, work history
c. Forecast the future for your client if the Court gives your client a second
chance.
d. What has the client done since being arrested.

2) Weave your facts into your mitigation factors.

3) If court rejects plea deal with sentencing recommendations, defendant is entitled
to a continuance. NCGS 15A-1023(b).

4) District Attorney may withdraw guilty plea at ANYTIME before the Court
accepts it.

5) If your client has first been found incompetent to stand trial and then is
rehabilitated, do not forget the competency hearing BEFORE you take the plea.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
1. a. The defendant induced others to participate in the commission of the offense.
2. a. The offense was committed for the purpose of avoiding or preventing a lawful arrest.
3. a. The defendant was hired to commit the offense.
4. a. The offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of laws.
5. The offense was committed against a present or former: law enforcement officer, employee of the Department of
6. The offense was especially heinous, atrocious or cruel.
7. The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which
8. The defendant held public office at the time of the offense and the offense related to the conduct of the office.
9. a. The defendant was armed with a deadly weapon at the time of the crime.
10.a. The victim was very young.
11. The defendant committed the offense while on pretrial release on another felony charge.
12. The defendant involved a person under the age of 16 in the commission of the crime.
13.a. The offense involved an attempted taking of property of great monetary value.
14. The defendant took advantage of a position of trust or confidence to commit the offense.
15. The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.
16. The offense was committed against a victim because of the victim's race, color, religion, nationality, or country of origin.
17. The offense was committed because of the race, color, religion nationality, or county of origin of another person.
18. Additional written findings of factors in aggravation:
Name Of Defendant
AGGRAVATING FACTORS
File No.
FELONY JUDGMENT
FINDINGS OF FACTORS IN AGGRAVATION
AND MITIGATION OF PUNISHMENT
STATE VERSUS
G.S. 15A-1340.4(a)
NOTE: Separate findings of aggravating factors and mitigating factors should be made for each offense. Only one factor should be found under each
numbered item for which there are alternatives listed.
Material opposite unmarked squares is to be disregarded as surplusage.
(Over)
The Court makes no findings of any aggravating factors.
In The General Court Of Justice
Superior Court Division
would normally be hazardous to the lives of more than one person.
Correction, jailer, fireman, emergency medical technician, ambulance attendant, justice or judge, clerk or assistant or deputy
clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of that person's
official duties or because of the exercise of that person's official duties. (NOTE: Strike words that are not applicable.)
County
b. The defendant occupied a position of leadership or dominance of other participants in the commission of the offense.
b. The offense was committed for the purpose of effecting an escape from custody.
b. The defendant was paid to commit the offense.
b. The offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws.
b. The defendant used a deadly weapon at the time of the crime.
b. The offense involved the actual taking of property of great monetary value.
c. The offense involved damage causing great monetary loss.
d. The offense involved an unusually large quantity of contraband.
b. The victim was very old.
c. The victim was mentally infirm.
d. The victim was physically infirm.
AOC-CR-303, Rev. 7/95
Date Name Of Presiding Judge (Type Or Print) Signature Of Presiding Judge
The Court makes no findings of any mitigating factors.
DETERMINATION (NOTE: Check only one)
factors in aggravation outweigh the factors in mitigation.
factors in mitigation outweigh the factors in aggravation.
1. The defendant has no record of criminal convictions.
2. The defendant has a record of criminal convictions consisting solely of misdemeanors punishable by not more than 60
3. The defendant committed the offense under duress which was insufficient to constitute a defense but significantly
4. The defendant committed the offense under coercion which was insufficient to constitute a defense but significantly
5. The defendant committed the offense under threat which was insufficient to constitute a defense but significantly
6. The defendant committed the offense under compulsion which was insufficient to constitute a defense but
7. The defendant was a passive participant in the commission of the offense.
8. The defendant played a minor role in the commission of the offense.
9. The defendant was suffering from a mental condition that was insufficient to constitute a defense but significantly
10. The defendant was suffering from a physical condition that was insufficient to constitute a defense but significantly
11. The defendant's immaturity at the time of the commission of the offense significantly reduced the defendant's
12. The defendant's limited mental capacity at the time of the commission of the offense significantly reduced the
13. The defendant has made substantial restitution to the victim.
14. The defendant has made full restitution to the victim.
15. The victim was more than 16 years of age and was a voluntary participant in the defendant's conduct.
16. The victim was more than 16 years of age and consented to the defendant's conduct.
17. The defendant aided in the apprehension of another felon.
18. The defendant testified truthfully on behalf of the state in another prosecution of a felony.
19. The defendant acted under strong provocation.
20. The relationship between the defendant and the victim was an extenuating circumstance.
21. The defendant could not reasonably foresee that the defendant's conduct would cause or threaten serious bodily harm
22. The defendant exercised caution to avoid serious bodily harm or fear to other persons.
23. The defendant reasonably believed that the defendant's conduct was legal.
24. Prior to arrest, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law
25. At an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the
26. The defendant has been honorably discharged from the United States Armed Services.
27. The defendant has been a person of good character or has had a good reputation in the community in which the
28. The defendant is a minor and has reliable supervision available.
29. Additional written findings of factors in mitigation:
MITIGATING FACTORS
Material opposite unmarked squares is to be disregarded as surplusage.
The Court, after considering the evidence and arguments presented at the trial and sentencing hearing, finds that the aggravating and
mitigating factors marked, if any, were proven by a preponderance of the evidence and that the
days imprisonment.
reduced the defendant's culpability.
significantly reduced the defendant's culpability.
reduced the defendant's culpability for the offense.
reduced the defendant's culpability for the offense.
culpability for the offense.
defendant's culpability for the offense.
or fear.
enforcement officer.
defendant lives.
offense to a law enforcement officer.
AOC-CR-303, Side Two, Rev. 7/95


PRIOR RECORD LEVEL
I
0-1 Pt
II
2-5 Pts
III
6-9 Pts
IV
10-13 Pts
V
14-17 Pts
VI
18+ Pts


A A A A A A
DISPOSITION
240 - 300 276 - 345 317 -397 365 - 456
Life Without
Parole
Life Without
Parole Aggravated Range
B1
144 - 192 166 - 221 190 - 254 219 - 292 252 - 336 290 - 386 Mitigated Range
A A A A A A
157 - 196 180 - 225 207 - 258 238 - 297 273 - 342 314 - 393
125 - 157 144 - 180 165 - 207 190 - 238 219 - 273 251 - 314
B2
94 - 125 108 - 144 124 - 165 143 - 190 164 - 219 189 - 251
A A A A A A
73 92 83 - 104 96 - 120 110 - 138 127 - 159 146 - 182
58 - 73 67 - 83 77 - 96 88 - 110 101 - 127 117 - 146
C
44 - 58 50 - 67 58 - 77 66 - 88 76 - 101 87 - 117
A A A A A A
64 - 80 73 - 92 84 - 105 97 - 121 111 - 139 128 - 160
51 - 64 59 - 73 67 - 84 78 - 97 89 - 111 103 - 128
D
38 - 51 44 - 59 51 - 67 58 - 78 67 - 89 77 - 103
I/A I/A A A A A
25 - 31 29 - 36 33 - 41 38 - 48 44 - 55 50 - 63
20 - 25 23 - 29 26 - 33 30 - 38 35 - 44 40 - 50
E
15 - 20 17 - 23 20 - 26 23 - 30 26 - 35 30 - 40
I/A I/A I/A A A A
16 - 20 19 - 23 21 - 27 25 - 31 28 - 36 33 - 41
13 - 16 15 - 19 17 - 21 20 - 25 23 - 28 26 - 33
F
10 - 13 11 - 15 13 - 17 15 - 20 17 - 23 20 - 26
I/A I/A I/A I/A A A
13 - 16 14 - 18 17 - 21 19 - 24 22 - 27 25 - 31
10 - 13 12 - 14 13 - 17 15 - 19 17 - 22 20 - 25
G
8 - 10 9 - 12 10 - 13 11 - 15 13 - 17 15 - 20
6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25
5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20
H
4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16
C C/I I I/A I/A I/A
6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12
4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10
O
F
F
E
N
S
E

C
L
A
S
S

I
3 - 4 3 - 4 4 - 5 4 - 6 5 - 7 6 - 8



Revised: 08-11-11

26
represents the corresponding maximum sentence (in months).

__________________FOR OFFENSE CLASSES B1 THROUGH E_________________
15-30 52-75 89-119 126-164 163-208 200-252 237-297 274-341 311-386
16-32 53-76 90-120 127-165 164-209 201-254 238-298 275-342 312-387
17-33 54-77 91-122 128-166 165-210 202-255 239-299 276-344 313-388
18-34 55-78 92-123 129-167 166-212 203-256 240-300 277-345 314-389
19-35 56-80 93-124 130-168 167-213 204-257 241-302 278-346 315-390
20-36 57-81 94-125 131-170 168-214 205-258 242-303 279-347 316-392
21-38 58-82 95-126 132-171 169-215 206-260 243-304 280-348 317-393
22-39 59-83 96-128 133-172 170-216 207-261 244-305 281-350 318-394
23-40 60-84 97-129 134-173 171-218 208-262 245-306 282-351 319-395
24-41 61-86 98-130 135-174 172-219 209-263 246-308 283-352 320-396
25-42 62-87 99-131 136-176 173-220 210-264 247-309 284-353 321-398
26-44 63-88 100-132 137-177 174-221 211-266 248-310 285-354 322-399
27-45 64-89 101-134 138-178 175-222 212-267 249-311 286-356 323-400
28-46 65-90 102-135 139-179 176-224 213-268 250-312 287-357 324-401
29-47 66-91 103-136 140-180 177-225 214-269 251-314 288-358 325-402
30-48 67-93 104-137 141-182 178-226 215-270 252-315 289-359 326-404
31-50 68-94 105-138 142-183 179-227 216-271 253-316 290-360 327-405
32-51 69-95 106-140 143-184 180-228 217-273 254-317 291-362 328-406
33-52 70-96 107-141 144-185 181-230 218-274 255-318 292-363 329-407
34-53 71-98 108-142 145-186 182-231 219-275 256-320 293-364 330-408
35-54 72-99 109-143 146-188 183-232 220-276 257-321 294-365 331-410
36-56 73-100 110-144 147-189 184-233 221-278 258-322 295-366 332-411
37-57 74-101 111-146 148-190 185-234 222-279 259-323 296-368 333-412
38-58 75-102 112-147 149-191 186-236 223-280 260-324 297-369 334-413
39-59 76-104 113-148 150-192 187-237 224-281 261-326 298-370 335-414
40-60 77-105 114-149 151-194 188-238 225-282 262-327 299-371 336-416
41-62 78-106 115-150 152-195 189-239 226-284 263-328 300-372 337-417
42-63 79-107 116-152 153-196 190-240 227-285 264-329 301-374 338-418
43-64 80-108 117-153 154-197 191-242 228-286 265-330 302-375 339-419
44-65 81-110 118-154 155-198 192-243 229-287 266-332 303-376
45-66 82-111 119-155 156-200 193-244 230-288 267-333 304-377
46-68 83-112 120-156 157-201 194-245 231-290 268-334 305-378
47-69 84-113 121-158 158-202 195-246 232-291 269-335 306-380
48-70 85-114 122-159 159-203 196-248 233-292 270-336 307-381
49-71 86-115 123-160 160-204 197-249 234-293 271-338 308-382
50-72 87-117 124-161 161-206 198-250 235-294 272-339 309-383
51-74 88-118 125-162 162-207 199-251 236-296 273-340 310-384
To calculate a maximum sentence when the minimum sentence is 340 months or more, multiply the minimum
sentence by 1.2 (i.e., 120%), round to the next highest month, and add 12. See G.S. 15A-1340.17(e1).
Sex Offenses: To calculate a maximum sentence for a Class B1 through E felony that is subject to the registration
requirements of G.S. Chapter 14, Article 27A, multiply the minimum sentence by 1.2 (i.e., 120%), round to the
next highest month, and add 60. See G.S. 15A-1340.17(f).

_________________FOR OFFENSE CLASSES F THROUGH I_________________
3-13 8-19 13-25 18-31 23-37 28-43 33-49 38-55
4-14 9-20 14-26 19-32 24-38 29-44 34-50 39-56
5-15 10-21 15-27 20-33 25-39 30-45 35-51 40-57
6-17 11-23 16-29 21-35 26-41 31-47 36-53 41-59
7-18 12-24 17-30 22-36 27-42 32-48 37-54

27


PRIOR RECORD LEVEL
I
0-1 Pt
II
2-5 Pts
III
6-9 Pts
IV
10-13 Pts
V
14-17 Pts
VI
18+ Pts


A A A A A A
DISPOSITION
240 - 300 276 - 345 317 - 397 365 - 456
Life Without
Parole
Life Without
Parole
Aggravated Range
B1
144 - 192 166 - 221 190 - 254 219 - 292 252 - 336 290 - 386 Mitigated Range
A A A A A A
157 - 196 180 - 225 207 - 258 238 - 297 273 - 342 314 - 393
125 - 157 144 - 180 165 - 207 190 - 238 219 - 273 251 - 314
B2
94 - 125 108 - 144 124 - 165 143 - 190 164 - 219 189 - 251
A A A A A A
73 - 92 83 - 104 96 - 120 110 - 138 127 - 159 146 - 182
58 - 73 67 - 83 77 - 96 88 - 110 101 - 127 117 - 146
C
44 - 58 50 - 67 58 - 77 66 - 88 76 - 101 87 - 117
A A A A A A
64 - 80 73 - 92 84 - 105 97 - 121 111 - 139 128 - 160
51 - 64 59 - 73 67 - 84 78 - 97 89 - 111 103 - 128
D
38 - 51 44 - 59 51 - 67 58 - 78 67 - 89 77 - 103
I/A I/A A A A A
25 - 31 29 - 36 33 - 41 38 - 48 44 - 55 50 - 63
20 - 25 23 - 29 26 - 33 30 - 38 35 - 44 40 - 50
E
15 - 20 17 - 23 20 - 26 23 - 30 26 - 35 30 - 40
I/A I/A I/A A A A
16 - 20 19 - 23 21 - 27 25 - 31 28 - 36 33 - 41
13 - 16 15 - 19 17 - 21 20 - 25 23 - 28 26 - 33
F
10 - 13 11 - 15 13 - 17 15 - 20 17 - 23 20 - 26
I/A I/A I/A I/A A A
13 - 16 14 - 18 17 - 21 19 - 24 22 - 27 25 - 31
10 - 13 12 - 14 13 - 17 15 - 19 17 - 22 20 - 25
G
8 - 10 9 - 12 10 - 13 11 - 15 13 - 17 15 - 20
6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25
5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20
H
4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16
C C/I I I/A I/A I/A
6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12
4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10
O
F
F
E
N
S
E

C
L
A
S
S

I
3 - 4 3 - 4 4 - 5 4 - 6 5 - 7 6 - 8



Revised: 08-31-09

28

represents the corresponding maximum sentence (in months). To calculate a maximum sentence when the minimum
sentence is 340 months or more see G.S. 15A-1340.17(e1).

______________FOR OFFENSE CLASSES B1 THROUGH E____________

15-27
16-29
17-30
18-31
19-32
20-33
21-35
22-36
23-37
24-38
25-39
26-41
27-42
28-43
29-44
30-45
31-47
32-48
33-49
34-50
35-51
36-53
37-54
38-55
39-56
40-57
41-59
42-60
43-61
44-62
45-63
46-65
47-66
48-67
49-68
50-69
51-71
52-72
53-73
54-74
55-75
56-77
57-78
58-79
59-80
60-81
61-83
62-84
63-85
64-86
65-87
66-89
67-90
68-91
69-92
70-93
71-95
72-96
73-97
74-98
75-99
76-101
77-102
78-103
79-104
80-105
81-107
82-108
83-109
84-110
85-111
86-113
87-114
88-115
89-116
90-117
91-119
92-120
93-121
94-122
95-123
96-125
97-126
98-127
99-128
100-129
101-131
102-132
103-133
104-134
105-135
106-137
107-138
108-139
109-140
110-141
111-143
112-144
113-145
114-146
115-147
116-149
117-150
118-151
119-152
120-153
121-155
122-156
123-157
124-158
125-159
126-161
127-162
128-163
129-164
130-165
131-167
132-168
133-169
134-170
135-171
136-173
137-174
138-175
139-176
140-177
141-179
142-180
143-181
144-182
145-183
146-185
147-186
148-187
149-188
150-189
151-191
152-192
153-193
154-194
155-195
156-197
157-198
158-199
159-200
160-201
161-203
162-204
163-205
164-206
165-207
166-209
167-210
168-211
169-212
170-213
171-215
172-216
173-217
174-218
175-219
176-221
177-222
178-223
179-224
180-225
181-227
182-228
183-229
184-230
185-231
186-233
187-234
188-235
189-236
190-237
191-239
192-240
193-241
194-242
195-243
196-245
197-246
198-247
199-248
200-249
201-251
202-252
203-253
204-254
205-255
206-257
207-258
208-259
209-260
210-261
211-263
212-264
213-265
214-266
215-267
216-269
217-270
218-271
219-272
220-273
221-275
222-276
223-277
224-278
225-279
226-281
227-282
228-283
229-284
230-285
231-287
232-288
233-289
234-290
235-291
236-293
237-294
238-295
239-296
240-297
241-299
242-300
243-301
244-302
245-303
246-305
247-306
248-307
249-308
250-309
251-311
252-312
253-313
254-314
255-315
256-317
257-318
258-319
259-320
260-371
261-323
262-324
263-325
264-326
265-327
266-329
267-330
268-331
269-332
270-333
271-335
272-336
273-337
274-338
275-339
276-341
277-342
278-343
279-344
280-345
281-347
282-348
283-349
284-350
285-351
286-353
287-354
288-355
289-356
290-357
291-359
292-360
293-361
294-362
295-363
296-365
297-366
298-367
299-368
300-369
301-371
302-372
303-373
304-374
305-375
306-377
307-378
308-379
309-380
310-381
311-383
312-384
313-385
314-386
315-387
316-389
317-390
318-391
319-392
320-393
321-395
322-396
323-397
324-398
325-399
326-401
327-402
328-403
329-404
330-405
331-407
332-408
333-409
334-410
335-411
336-413
337-414
338-415
339-416

____________FOR OFFENSE CLASSES F THROUGH I____________

3-4
4-5
5-6
6-8
7-9

8-10
9-11
10-12
11-14
12-15

13-16
14-17
15-18
16-20
17-21

18-22
19-23
20-24
21-26
22-27

23-28
24-29
25-30
26-32
27-33

28-34
29-35
30-36
31-38
32-39
33-40
34-41
35-42
36-44
37-45

38-46
39-47
40-48
41-50
29


PRIOR RECORD LEVEL
I
0 Pts
II
1-4 Pts
III
5-8 Pts
IV
9-14 Pts
V
15-18 Pts
VI
19+ Pts


A A A A A A
DISPOSITION
240 - 300 288 - 360 336 - 420 384 - 480
Life Without
Parole
Life Without
Parole
Aggravated Range
B1
144 - 192 173 - 230 202 - 269 230 - 307 260 - 346 288 - 384 Mitigated Range
A A A A A A
157 - 196 189 - 237 220 - 276 251 - 313 282 - 353 313 - 392
125 - 157 151 - 189 176 - 220 201 - 251 225 - 282 251 - 313
B2
94 - 125 114 - 151 132 - 176 151 - 201 169 - 225 188 - 251
A A A A A A
73 - 92 100 - 125 116 - 145 133 - 167 151 - 188 168 - 210
58 - 73 80 - 100 93 - 116 107 - 133 121 - 151 135 - 168
C
44 - 58 60 - 80 70 - 93 80 - 107 90 - 121 101 - 135
A A A A A A
64 - 80 77 - 95 103 - 129 117 - 146 133 - 167 146 - 183
51 - 64 61 - 77 82 - 103 94 - 117 107 - 133 117 - 146
D
38 - 51 46 - 61 61 - 82 71 - 94 80 - 107 88 - 117
I/A I/A A A A A
25 - 31 29 - 36 34 - 42 46 - 58 53 - 66 59 - 74
20 - 25 23 - 29 27 - 34 37 - 46 42 - 53 47 - 59
E
15 - 20 17 - 23 20 - 27 28 - 37 32 - 42 35 - 47
I/A I/A I/A A A A
16 - 20 19 - 24 21 - 26 25 - 31 34 - 42 39 - 49
13 - 16 15 - 19 17 - 21 20 - 25 27 - 34 31 - 39
F
10 - 13 11 - 15 13 - 17 15 - 20 20 - 27 23 - 31
I/A I/A I/A I/A A A
13 - 16 15 - 19 16 - 20 20 - 25 21 - 26 29 - 36
10 - 13 12 - 15 13 - 16 16 - 20 17 - 21 23 - 29
G
8 - 10 9 - 12 10 - 13 12 - 16 13 - 17 17 - 23
6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25
5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20
H
4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16
C C/I I I/A I/A I/A
6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12
4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10
O
F
F
E
N
S
E

C
L
A
S
S

I
3 - 4 3 - 4 4 - 5 4 - 6 5 - 7 6 - 8



Revised: 08-04-95

30

sentence is 340 months or more, see G.S. 15A-1340.17(e1).

FOR OFFENSE CLASSES B1 THROUGH E

15-27
16-29
17-30
18-31
19-32
20-33
21-35
22-36
23-37
24-38
25-39
26-41
27-42
28-43
29-44
30-45
31-47
32-48
33-49
34-50
35-51
36-53
37-54
38-55
39-56
40-57
41-59
42-60
43-61
44-62
45-63
46-65
47-66
48-67
49-68
50-69
51-71
52-72
53-73
54-74
55-75

56-77
57-78
58-79
59-80
60-81
61-83
62-84
63-85
64-86
65-87
66-89
67-90
68-91
69-92
70-93
71-95
72-96
73-97
74-98
75-99
76-101
77-102
78-103
79-104
80-105
81-107
82-108
83-109
84-110
85-111
86-113
87-114
88-115
89-116
90-117
91-119
92-120
93-121
94-122
95-123
96-125

97-126
98-127
99-128
100-129
101-131
102-132
103-133
104-134
105-135
106-137
107-138
108-139
109-140
110-141
111-143
112-144
113-145
114-146
115-147
116-149
117-150
118-151
119-152
120-153
121-155
122-156
123-157
124-158
125-159
126-161
127-162
128-163
129-164
130-165
131-167
132-168
133-169
134-170
135-171
136-173
137-174

138-175
139-176
140-177
141-179
142-180
143-181
144-182
145-183
146-185
147-186
148-187
149-188
150-189
151-191
152-192
153-193
154-194
155-195
156-197
157-198
158-199
159-200
160-201
161-203
162-204
163-205
164-206
165-207
166-209
167-210
168-211
169-212
170-213
171-215
172-216
173-217
174-218
175-219
176-221
177-222
178-223

179-224
180-225
181-227
182-228
183-229
184-230
185-231
186-233
187-234
188-235
189-236
190-237
191-239
192-240
193-241
194-242
195-243
196-245
197-246
198-247
199-248
200-249
201-251
202-252
203-253
204-254
205-255
206-257
207-258
208-259
209-260
210-261
211-263
212-264
213-265
214-266
215-267
216-269
217-270
218-271
219-272

220-273
221-275
222-276
223-277
224-278
225-279
226-281
227-282
228-283
229-284
230-285
231-287
232-288
233-289
234-290
235-291
236-293
237-294
238-295
239-296
240-297
241-299
242-300
243-301
244-302
245-303
246-305
247-306
248-307
249-308
250-309
251-311
252-312
253-313
254-314
255-315
256-317
257-318
258-319
259-320
260-321

261-323
262-324
263-325
264-326
265-327
266-329
267-330
268-331
269-332
270-333
271-335
272-336
273-337
274-338
275-339
276-341
277-342
278-343
279-344
280-345
281-347
282-348
283-349
284-350
285-351
286-353
287-354
288-355
289-356
290-357
291-359
292-360
293-361
294-362
295-363
296-365
297-366
298-367
299-368
300-369
301-371

302-372
303-373
304-374
305-375
306-377
307-378
308-379
309-380
310-381
311-383
312-384
313-385
314-386
315-387
316-389
317-390
318-391
319-392
320-393
321-395
322-396
323-397
324-398
325-399
326-401
327-402
328-403
329-404
330-405
331-407
332-408
333-409
334-410
335-411
336-413
337-414
338-415
339-416

FOR OFFENSE CLASSES F THROUGH I

3-4
4-5
5-6
6-8
7-9
8-10
9-11
10-12
11-14
12-15
13-16
14-17
15-18
16-20
17-21
18-22
19-23
20-24
21-26
22-27
23-28
24-29
25-30
26-32
27-33
28-34
29-35
30-36
31-38
32-39
33-40
34-41
35-42
36-44
37-45
38-46
39-47
40-48
41-50
42-51
43-52
44-53
45-54
46-56
47-57
48-59
49-59

31


PRIOR RECORD LEVEL
I
0 Pts
II
1-4 Pts
III
5-8 Pts
IV
9-14 Pts
V
15-18 Pts
VI
19+ Pts


A A A A A A
DISPOSITION
240 - 300 288 - 360 336 - 420 384 - 480
Life Without
Parole
Life Without
Parole
Aggravated Range
B1
144- 192 173 - 230 202 - 269 230 - 307 260 - 346 288 - 384 Mitigated Range
A A A A A A
135 - 169 163 - 204 190 - 238 216 - 270 243 - 304 270 - 338
108 - 135 130 - 163 152 - 190 173 - 216 194 - 243 216 - 270
B2
81 - 108 98 - 130 114 - 152 130 - 173 146 - 194 162 - 216
A A A A A A
63 - 79 86 - 108 100 - 125 115 - 144 130 - 162 145 - 181
50 - 63 69 - 86 80 - 100 92 - 115 104 - 130 116 - 145
C
38 - 50 52 - 69 60 - 80 69 - 92 78 - 104 87 - 116
A A A A A A
55 - 69 66 - 82 89 - 111 101 - 126 115 - 144 126 - 158
44 - 55 53 - 66 71 - 89 81 - 101 92 - 115 101 - 126
D
33 - 44 40 - 53 53 - 71 61 - 81 69 - 92 76 - 101
I/A I/A A A A A
25 - 31 29 - 36 34 - 42 46 - 58 53 - 66 59 - 74
20 - 25 23 - 29 27 - 34 37 - 46 42 - 53 47 - 59
E
15 - 20 17 - 23 20 - 27 28 - 37 32 - 42 35 - 47
I/A I/A I/A A A A
16 - 20 19 - 24 21 - 26 25 - 31 34 - 42 39 - 49
13 - 16 15 - 19 17 - 21 20 - 25 27 - 34 31 - 39
F
10 - 13 11 - 15 13 - 17 15 - 20 20 - 27 23 - 31
I/A I/A I/A I/A A A
13 - 16 15 - 19 16 - 20 20 - 25 21 - 26 29 - 36
10 - 13 12 - 15 13 - 16 16 - 20 17 - 21 23 - 29
G
8 - 10 9 - 12 10 - 13 12 - 16 13 - 17 17 - 23
C/I I I/A I/A I/A A
6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25
5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20
H
4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16
C C/I I I/A I/A I/A
6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12
4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10
O
F
F
E
N
S
E

C
L
A
S
S

I
3 - 4 3 - 4 4 - 5 4 - 6 5 - 7 6 - 8



Revised: 04-05-94

32

sentence is 340 months or more, see G.S. 15A-1340.17(e1).

FOR OFFENSE CLASSES B1 THROUGH E

15-27
16-29
17-30
18-31
19-32
20-33
21-35
22-36
23-37
24-38
25-39
26-41
27-42
28-43
29-44
30-45
31-47
32-48
33-49
34-50
35-51
36-53
37-54
38-55
39-56
40-57
41-59
42-60
43-61
44-62
45-63
46-65
47-66
48-67
49-68
50-69
51-71
52-72
53-73
54-74
55-75

56-77
57-78
58-79
59-80
60-81
61-83
62-84
63-85
64-86
65-87
66-89
67-90
68-91
69-92
70-93
71-95
72-96
73-97
74-98
75-99
76-101
77-102
78-103
79-104
80-105
81-107
82-108
83-109
84-110
85-111
86-113
87-114
88-115
89-116
90-117
91-119
92-120
93-121
94-122
95-123
96-125

97-126
98-127
99-128
100-129
101-131
102-132
103-133
104-134
105-135
106-137
107-138
108-139
109-140
110-141
111-143
112-144
113-145
114-146
115-147
116-149
117-150
118-151
119-152
120-153
121-155
122-156
123-157
124-158
125-159
126-161
127-162
128-163
129-164
130-165
131-167
132-168
133-169
134-170
135-171
136-173
137-174

138-175
139-176
140-177
141-179
142-180
143-181
144-182
145-183
146-185
147-186
148-187
149-188
150-189
151-191
152-192
153-193
154-194
155-195
156-197
157-198
158-199
159-200
160-201
161-203
162-204
163-205
164-206
165-207
166-209
167-210
168-211
169-212
170-213
171-215
172-216
173-217
174-218
175-219
176-221
177-222
178-223

179-224
180-225
181-227
182-228
183-229
184-230
185-231
186-233
187-234
188-235
189-236
190-237
191-239
192-240
193-241
194-242
195-243
196-245
197-246
198-247
199-248
200-249
201-251
202-252
203-253
204-254
205-255
206-257
207-258
208-259
209-260
210-261
211-263
212-264
213-265
214-266
215-267
216-269
217-270
218-271
219-272

220-273
221-275
222-276
223-277
224-278
225-279
226-281
227-282
228-283
229-284
230-285
231-287
232-288
233-289
234-290
235-291
236-293
237-294
238-295
239-296
240-297
241-299
242-300
243-301
244-302
245-303
246-305
247-306
248-307
249-308
250-309
251-311
252-312
253-313
254-314
255-315
256-317
257-318
258-319
259-320
260-321

261-323
262-324
263-325
264-326
265-327
266-329
267-330
268-331
269-332
270-333
271-335
272-336
273-337
274-338
275-339
276-341
277-342
278-343
279-344
280-345
281-347
282-348
283-349
284-350
285-351
286-353
287-354
288-355
289-356
290-357
291-359
292-360
293-361
294-362
295-363
296-365
297-366
298-367
299-368
300-369
301-371

302-372
303-373
304-374
305-375
306-377
307-378
308-379
309-380
310-381
311-383
312-384
313-385
314-386
315-387
316-389
317-390
318-391
319-392
320-393
321-395
322-396
323-397
324-398
325-399
326-401
327-402
328-403
329-404
330-405
331-407
332-408
333-409
334-410
335-411
336-413
337-414
338-415
339-416

FOR OFFENSE CLASSES F THROUGH I

3-4
4-5
5-6
6-8
7-9
8-10
9-11
10-12
11-14
12-15
13-16
14-17
15-18
16-20
17-21
18-22
19-23
20-24
21-26
22-27
23-28
24-29
25-30
26-32
27-33
28-34
29-35
30-36
31-38
32-39
33-40
34-41
35-42
36-44
37-45
38-46
39-47
40-48
41-50
42-51
43-52
44-53
45-54
46-56
47-57
48-59
49-59

33
34
1/31/2013
1
Records Gathering
and
Sentencing Advocacy
2013 New Felony
Defender Training
Why Request Records?
Support your Defense
Corroborate your Facts and Mitigation
Alter a J ury or J udges Perception
Discover Potential Witnesses
Demonstrate Clients Character, Background &
History
Assist in Plea Negotiations or Sentencing
Arguments
Possible Admittance into Specialty Courts
Types of Records &
Potential Uses
School Records
Request Cumulative File; not just Transcript
Potential Witnesses
Shows Stability or Chaos
Disciplinary
Test Scores
Exceptional Childrens Confidential File
-Make Specific Request for File in its Entirety
1/31/2013
2
Types of Records &
Potential Uses
Out-Patient Records
Family Doctor / Pediatrician
Local Health Department
Substance Abuse Treatment
Mental Health Treatment
Types of Records &
Potential Uses
Hospital Records
Diagnoses
ER Visits
Date(s) of Treatment
Potential Witnesses
Other Collateral Records
Types of Records &
Potential Uses
Prison Records
Medical & Mental Health Files
Prison File Disciplinary, Movement, etc.
Education File
- Must Use Specific Language in Release
DART File (Drug/Alcohol Recovery Treatment)
- Must Use Specific Language in Release
1/31/2013
3
Types of Records &
Potential Uses
J ail Records
Infractions / Behavior
Medical or Mental Health Issues
Visitation Logs
Potential Witnesses
Types of Records &
Potential Uses
Employment Records
Application
Performance Evaluations
Raises
Conditions of Termination
Potential Witnesses
Types of Records &
Potential Uses
Social Security Certified Detailed Earnings
Report (Form 7050)
Details Employment History per Year
Proves Income / Work History
Potential Witnesses
1/31/2013
4
Types of Records &
Potential Uses
Military Records
Duty Assignment & Performance
Promotions / Honors / Awards
Disciplinary
Medical / Mental Health
Potential Witnesses
Types of Records
Requires Court Order
DSS / CPS Records
J uvenile Records
No Signed Release
Uncooperative Defendant
NC DOC Entire File (Probation/Parole, etc)
When / How to Request?
Going to Trial, Seeking Plea or Plea Hearing
Gather specific information from Client to decide where
to send releases Doctors, hospitals, schools, jobs, etc.
Have Client sign release(s) as early as possible. It often
takes weeks to receive records
If Client is a Minor (under 18), get Guardian to sign release(s)
Send Release & Cover Letter to Appropriate Agency
Note some agencies may charge for records
1/31/2013
5
IDS Miscellaneous
Expense Policy
Over $250
Obtain prior approval from Court
Send bill and signed Court Order to IDS
Under $250
No need for prior approval
Send bill to IDS
For details see IDS Policy on Public Defender
Miscellaneous (Non-Expert Expenses) at IDS Website:
www.ncids.org
Sample Releases
in Packet
General Release
Sample
HIPPA Language
I certify that this authorization is made freely, voluntarily, and without
coercion. I understand that this information may include references to
psychiatric care, sexual assault, alcohol and drug abuse and results of tests
for all infectious diseases including AIDS/HIV. I understand that the
information to be released is protected under State and Federal laws and
cannot be re-disclosed without my further written consent unless otherwise
provided for by State or Federal law. I hereby give written consent for the
re-disclosure of any such information when it is deemed necessary. I
understand that I may revoke this authorization at any time by notifying the
agency or person listed above in writing, except to the extent that action
has already been taken to comply with it. This authorization will
automatically expire one year fromthe date it is signed unless revoked
sooner. A photocopy of this authorization may be considered as valid as
the original. This information is critical and is to be used for legal purposes
by the above-mentioned legal representative(s) for their representation of
me and/or my family member. This release is absolutely limited to the
designated agency or person named above.
1/31/2013
6
Sample Releases
in Packet
General Release
Military Release
Military Records
Contact Information
National Personnel Records Center
1 Archive Drive
St. Louis, MS 63138
Phone: 888-276-9472
Fax: 314-801-9195
www.archives.gov
Click on Forms and SF 180, Request Pertaining to Military
Records for Release
Sample Releases
in Packet
General Release
Military Release
NC DOC Release
Social Security Earnings Release
Agency Specific ie UNC Hospitals
1/31/2013
7
Sample Release Schedule
J ohn Smith DOB: 1/1/1961
Release Schedule SSN: 123-45-6789
Records Needed Date Requested Dat e Received/Inf o
Wake County J ail 11/30/2010 12/17/2010
UNC Hospitals 11/30/2010 12/10/2010
Dr. J ones 11/30/2010
Guilford County Schools 12/3/2010 12/8/2010
Wake County Schools 12/3/2010 12/9/2010
12/17/2010
Sample Release Schedule
J ohn Smith DOB: 1/1/1961
Release Schedule SSN: 123-45-6789
Records Needed Date Requested Dat e Received/Inf o
Wake County J ail 11/30/2010 12/17/2010
UNC Hospitals 11/30/2010 12/10/2010
Dr. J ones 11/30/2010
Guilford County Schools 12/3/2010 12/8/2010
Wake County Schools 12/3/2010 12/9/2010
12/17/2010
Background B Record Charting
John Smith BACKGROUND RECORDS
as of 12.17.10

Page Record Description Date received

B1-B13 GuilfordCountySchools 12/8/2010

B14 B46 WakeCountySchools 12/9/2010

B47-B285 UNC Hospitals 12/10/2010

B286 B330 WakeCountyJ ail 12/17/2010

1/31/2013
8
Mentally Ill
& the Criminal J ustice System
Sentencing Advocacy
2013 New Felony
Defender Training
Scenario
You are preparing for a sentencing hearing. Your client entered an Alford plea
to 1 count of PWISD Cocaine. State dismissed Sell of Cocaine/ Maintaining a
Dwelling/Possession of Marijuana (M)/PDP. Your clients history is as follows:
Record Level II [Misd. Drug offense/ Misd. Larceny/2 DWI-s/ Traffic viol.]
Says he has been married for 3 years and is 25 years old
Says he was born and raised in the community and both parents are alive
Says he was set up/CI is lying/Co-Defendant did it
Says he has been working at Arbys for 3 months
Says he supports two children (one from a previous relationship)
Finished the 10
th
Grade at the local high school
Has and attitude.
Never seen him wear a belt or a dress shirt (shirt always not tucked)
Has shoulder length hair.
Has tattoos on both of his arms
Wears an earring on each ear and large gold necklace
Has a learning disability
Has two months jail credit
Police seized $500.00 in cash at the time of arrest
Says he goes to church
Date of offense: 11/30/11 and Date of Plea/Sentencing: 4/5/12
1/31/2013
9
Discussion
What are your objectives/end state?
What do you want?
What records might you need?
Documentation.
Who do you want in courtroom?
Presentation/Support
How do you prepare your client?
You are an artist!
What mitigating factors are available?
Be specific and thorough.
Does your client address the court?
Toughest Question
Guidance
CLEAR
CONCISE
CREDIBLE
CONFIDENT
Guidance
Sell the Prosecutor
Sell the Client
Sell the J udge
YOU ARE A SALESPERSON!
1/31/2013
10
Contact Info:
Beth Winston
Capital Case Investigator
Office of the Capital Defender
123 W. Main St., Suite 601
Durham, NC 27701
919-354-7179
[email protected]
Contact Info:
Robert C. Kemp, III (Bert)
Pitt County Public Defender
212 S. Greene Street
Greenville, NC 27834
252-695-7317
[email protected]

2013 Felony Defender Training

Uploaded by

Copyright:

Available Formats

2013 Felony Defender Training

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2013 Felony Defender Training

Uploaded by

Copyright:

Available Formats

2013NewFelonyDefenderTraining

* Effective for Offenses Committed on or after 12/1/11 *

You might also like